Limerick Township Violates Preemption!?

[exceltoexcel]

Originally Posted by tl_3237

Kudos on that. Keep us posted on the reaction. +rep sent.

Any chance of posting the accompanying e-mail that you sent?

It's buried in these pages somewhere. It is the same one with a few extra lines stating that I have secured funding for legal action and that if the sign is not changed within 15 days or if the ordinance is not reworded within 90 days that I will begin legal proceedings. I also added that since the ordinance and sign are clearly illegal when visiting the park I will wear my firearm openly within accordance of the laws of the commonwealth of Pennsylvania whenever I so choose. I noted that if I am given a citation it will strengthen my case against the township. I basically said save us all the headaches since there have already been cases where townships have been compelled to change their laws and civil suits. I'm hoping that after over two years of being nice they realise the time has come to stop it now..

[exceltoexcel]

I have done ll the homework people, we've seen cases where local governments have backed down. I have the funds to take this to appellate court, FINALLY! With those secured we will find out who is correct me or gun-lawyer To say that I'm betting on me is an understatement...

[GunLawyer001]

Just so we're all on the same page, here's what I said back in 2006, when this started:

Originally Posted by GunLawyer001

Gentlemen: This is my first posting on this site. I'm an attorney, I'm pro-gun, but I have to tell you that property owners have more rights on their property than members of the general public have on that property, even where the property owner is the government.

A private property owner can set almost any conditions for use of the property, as long as he doesn't trample on a protected class, and even then a truly private property owner can decline to invite blacks, women, the handicapped, whoever into his home.

Once you start renting it out or inviting the general public in, then you can't discriminate against one of the recognized protected classes. Gun owners are not in a protected class, at least not the way minorites, women, and the handicapped are protected.

For private property that's open to the public, there's case law that defines what can and can't be restricted. There's case law on quasi-public property like shopping malls; some courts have held that they are the modern "town squares", and must accomodate some free speech; there's also case law that holds that it's still private property, and the Bill of Rights doesn't apply. I'm unaware of any case law that holds that "quasi public" property can't prohibit gun possession as a condition of use, at least not in any State without a specific "right to carry on private property" statute.

Government entities that are acting in a private capacity have their own set of rules. If your local town collects your trash for a fee, or sells you electricity, they are acting as just another vendor. As property owners, even PUBLIC property owners, they are entitled to establish rules for the use of that property by the public. They can ban open fires, even where open fires are generally lawful. They can ban dogs, even where dogs are generally lawful. They can limit groups to 100 or 500 or whatever, they can require permits for large public assemblies.

Opening land for public use doesn't mean they must just open the gates and let you do whatever you wish. 200+ years of case law and statutes are clear on this.

PA pre-emption prevents your town from banning assault rifles everywhere within town limits, but it doesn't prevent them from imposing restrictions on how the public uses property that's open to the public, any more than pre-emption prevents you from sticking a sign on your home or business door that says "no guns allowed". Property owners have rights, and in fact are required to exercise control over what happens on their land.

Here's the way the law works: if Costco bans guns on their premises (which they do), but they don't post signs at the door, then all they can do is ask you to leave once they see that you have a gun. If you refuse to leave, then it's defiant trespass, a criminal offense. If they post a clearly-visible "no guns" sign at the door and you come in with a gun, then you are trespassing even before they confront you.

That's the law, it's the way it really works. Property owners have rights, and they sometimes trump your rights as a guest on their property.

The ONLY possibility for this Limerick issue is this: Governments can't step on your civil rights, even when acting in a private capacity. This isn't a pre-emption issue, it's a civil rights question. The PA Constitution protects your right to keep & bear arms, but there's not much case law on it, partly because they re-did the State Constitution back in the 1960's. If the courts hold that you have a recognized, individual civil right to carry a firearm everywhere, then the Limerick statute might be vulnerable. However, both State and Federal laws already limit where you can carry, by excluding courthouses & schools.

Limerick could just post "no guns" signs at the park entrance, but criminalizing it through a formally enacted statute is more clearly government action that might infringe State law; but since it only applies on park property, my bet would be that it would be upheld anyway.

Here's the odds as I see them:

3 to 1 that a posted sign prohibiting guns in a public park will be allowed, same as if WalMart did it.

5 to 1 that any statute criminalizing such possession will be struck down. Private property owners can't do that, and it's pretty clearly prohibited by the preemption statute.

PA courts do some weird things, though, and I'd be tickled if the courts took the broad, pro-rights view and banned the signs AND the ordinance. We've all been surprised before, especially when the PA Supreme Court allowed the "record of sales database" that most cops use like a registry.

It's not about "right" and "wrong", every case has two opposing sides and each has some argument for why they should prevail. The courts are a set of dice, the outcome is seldom certain. I happen to think that a municipal owner of a piece of land won't be held to have fewer rights than a private owner of the same parcel would have. Fighting a legal battle for a different result is a good fight, and I wish you luck with it.

The Heller case was decided since I posted in 2006, and it does bring us one step closer (out of 3 or 4 steps needed) to finding the 2nd Amendment an individual right that is binding on the States, requiring Strict Scrutiny of any state action that infringes it.

[exceltoexcel]

well then at least I won't have a criminal record . and since no one told me to leave I'm in the clear but Ohio and Virginia case law says I'll win outright as well as several attorneys I'm betting a complete win.

[Statkowski]

GunLawyer001 wrote:
Limerick could just post "no guns" signs at the park entrance, but criminalizing it through a formally enacted statute is more clearly government action that might infringe State law; but since it only applies on park property, my bet would be that it would be upheld anyway.

18 PA.C.S. § 6120 states, "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."

Just exactly what part of "in any manner" is confusing to any member of the legal community, including judges?

[GunLawyer001]

Originally Posted by Statkowski

18 PA.C.S. § 6120 states, "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."

Just exactly what part of "in any manner" is confusing to any member of the legal community, including judges?

What does "regulate" mean? Can you issue "regulations" regarding guests in your home, or are those terms and conditions something else?

It wasn't a foregone conclusion what would happen to the PSP "record of sale database", when the law is: "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 court found wiggle room in the word "registry". Good, solid lawyers expected otherwise.

You doubt that they can distinguish laws and ordinances of general applicability, from park policies with limited effect and no criminal sanctions?

The law isn't for the weak. There's complication in the simplest sentences and words.

[Statkowski]

Sometimes all the book-learning that goes in one ear pushes the resident common sense out the other ear.

[GunLawyer001]

Originally Posted by Statkowski

Sometimes all the book-learning that goes in one ear pushes the resident common sense out the other ear.

That's as may be, but I'm telling you what could happen in the legal system as it exists, as it has existed for centuries, going back to the days when courts held session while armies fought on horseback, and the longbow was state of the art.

Look at the Commerce Clause, and tell me if you would have predicted Wickard v. Filburn. Read the text of the 2nd Amendment, and see if "shall not be infringed" means "we can ban entire classes of weapons, create broad groups of prohibited persons, ban imports, and tightly regulate all sales".

You want someone to blow sunshine up your dress, count me out. You want a guide into hostile territory, I'm here.

If you want serious craziness, go to Harvard, where they firmly believe that Marxism hasn't succeeded anywhere on Earth because they never went far enough with it.

[Statkowski]

Can't disagree with you.

[exceltoexcel]

For the record gunlawyer ( I don't mean to be inflamitory). is one out of seven lawyers + the ag's office that takes an opposing stance. well I guess two possibly but I think he was the first I called. He now changes his stance, as I see it, after the rubber hits the road. I would never address this issue if I wasn't sure I'm legal.. I'm not only legal I'm 100% guaranteed to win or my money back . thank for wasting time getting justice. yeah I'm bitter but at least I head into that dark night knowing I'll win and if charged I'll get my money + back. federal lawsuit and all. It's a great investment not for the money but for our nation state township and children. If this was las vegas I'd bet everything I'm worth on it. Almost three years in the making! Victory will be ours! Enough of the nonsense. I saved up thousands to take this on! There can be no doubt I'm attempting to right this injustice...