Home rule charter vs. Article 1, Section 21 - who wins?

[TravisBickle]

Strictly in legal terms and without personal opinion, does Philadelphia's "city of the first class" status entitle its government to ignore Article 1, Section 21's commandment that "the right to bear arms for defense of self and the State shall not be questioned?"


I ask because the gun control advocates' argument that Philly should have its own gun regulations seems to hinge on this concept.

[danp]

More precisely it hinges on PA Statute Title 18 Chapter 61 § 6120 which is our "pre-emption" statute. which states:

(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.
(a.1) No right of action.--

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.

This is the state-law that prevents cities, towns, etc from enacting their own gun laws and the one that Philadelphia would love to get removed from the books.

This is probably the singly most important state law on the books protecting us from the insanity that anti-gun politicians in Philadelphia would love to force on us.

[Rule10b5]

Originally Posted by MorganB

Strictly in legal terms and without personal opinion, does Philadelphia's "city of the first class" status entitle its government to ignore Article 1, Section 21's commandment that "the right to bear arms for defense of self and the State shall not be questioned?"


I ask because the gun control advocates' argument that Philly should have its own gun regulations seems to hinge on this concept.

No. The Pa. Constitution may never be ignored. It is, basically, the source of all law within the Commonwealth. As such, the Home Rule Charter is subordinate to the Pa. Constitution. A lot of folks (mostly anti-gun types) have argued that it somehow exempts them -- and they've devoted a lot of effort (much of it by very skilled lawyers) to trying to prove as much. The thing is, though, that such an interpretation is completely at odds with the reasons behind having a Constitution in the first place. You need one law that is absolutely supreme for our system to work. Trying to argue that a statute allows you to ignore a general constitutional provision is legally inconsistent with that.

Even setting aside the general rule that all statutes are subordinate to the constitution under which they are enacted, Article XV, Section 1 of the Pa. Constitution states that: "Cities, or cities of any particular class, may be given the right and power to frame and adopt their own charters and to exercise the powers and authority of local self-government, subject, however, to such restrictions, limitations, and regulations, as may be imposed by Legislature."

As the Pa. Legislature (as Dan noted) has passed a specific law precluding firearms regulation by any locality, any attempt to ignore it or legislate around the UFA violates Article XV.

[knight0334]

Any law that derives it's authority from another law, is also subordinate to it.

All laws and State Constitutions are subordinate to the US Constitution. All state laws are subordinate to the US and State Constitutions

No matter what law a locality creates, its must follow within the guidelines of the US and respective State Constitution.

[ChamberedRound]

Originally Posted by danp

This is probably the singly most important state law on the books protecting us from the insanity that anti-gun politicians in Philadelphia would love to force on us.

Agreed. I don't want to see ANY anti-gun laws passed, but if we are backed into a corner and have to choose one law to defend unwaveringly, the preemption law of the UFA is the one.

[ChamberedRound]

Originally Posted by knight0334

Any law that derives it's authority from another law, is also subordinate to it.

All laws and State Constitutions are subordinate to the US Constitution. All state laws are subordinate to the US and State Constitutions

No matter what law a locality creates, its must follow within the guidelines of the US and respective State Constitution.

This is true in an ideal world. However, the fact of the matter is laws which are unconstitutional are passed and enforced. Take for example the US Assault Weapons Ban (long expired); some would argue it was unconstitutional, yet it was passed and enforced.

Even if the proposed bills are unconstitutional, we shouldn't dismiss them. We need to make sure our legislators know we believe them to be not only unconstitutional, but also to be ineffective and without merit. Like it or not, our Representatives and Senators have a large constituency, and have to make a decision for a large group of people; we need to convince them our argument is sound and is in the best interested of all the citizens they represent.

[TravisBickle]

Dan,

Assume for a second that there is no UFA preemption and we're considering only the city's home rule charter rules vs. the PA State Constitution's enumerated rights......

[billamj]

Originally Posted by MorganB

Dan,

Assume for a second that there is no UFA preemption and we're considering only the city's home rule charter rules vs. the PA State Constitution's enumerated rights......

The State Constitution is a preemptory document in and of itself. If the Constitution states that no lesser governmental entity can take on certain rights or priviledges then that is how it is. A city has no right to tell the state that it has more rights than the state does.

[danp]

Originally Posted by MorganB

Dan,

Assume for a second that there is no UFA preemption and we're considering only the city's home rule charter rules vs. the PA State Constitution's enumerated rights......

In theory: Philadelphia would still be unable to pass most gun laws because of the constitution protecting our inherent right to bear arms in defense of ourselves and the state

In reality: Philadelphia would pass draconian gun laws and enforce them strictly until a court ruled them unconstitutional which might take years.

[TravisBickle]

Originally Posted by billamj

The State Constitution is a preemptory document in and of itself. If the Constitution states that no lesser governmental entity can take on certain rights or priviledges then that is how it is. A city has no right to tell the state that it has more rights than the state does.

OK here's an honest question because I don't know the answer: Is the Home Rule Charter an integral part of the State Constitution, or is it a power granted to a city of the first class by the legislature?

If it's a part of the Constitution itself, it could be argued that Philadelphia does in fact have legal standing to enact draconian gun laws absent UFA preemption.

If the PA assembly gave this power to Philly (and Pittsburgh?), I don't see how they can argue that it can interfere with an enumerated right.