PA Fish and Boat Commission preemption violation

[9orangeletters]

I noticed a sign at all of the boat ramps along the Lehigh that we passed yesterday (and at Lake Nockamixon on Friday) that the PA F&B commission has outlawed carrying firearms, except for those of us with LTCF.

I can understand if they operate on private property, but if this is a governmental commission operating on public land, how can they outlaw it?

http://www.fishandboat.com/fishpub/s...cproperty.html

[gnbrotz]

I noticed a sign at all of the boat ramps along the Lehigh that we passed yesterday (and at Lake Nockamixon on Friday) that the PA F&B commission has outlawed carrying firearms, except for those of us with LTCF.

I can understand if they operate on private property, but if this is a governmental commission operating on public land, how can they outlaw it?

http://www.fishandboat.com/fishpub/s...cproperty.html

The preemption statute applies to "counties, municipalities, and townships." The Fish & Boat Commission is none of these, thus they are not bound by preemption. There is new language in HB40 that will prohibit "any Commonwealth agency" from regulating "the possession of firearms in any manner inconsistent with" existing law.

[Statkowski]

First, there is no preemption violation here since preemption only applies to counties, townships, boroughs and cities, not state government entities.

Second, if backed up by Pa. Code, it is enforceable. If not backed up by published regulation, then it's extra-legal (and therefore null and void). Since the Fish & Game Commission went so far as to publish all sorts of rules and regulations on its website, I would presume everything on the website is covered by a published regulation.

I do think that part of the problem in creating such regulations is that state law is silent on unlicensed open carry. Since it's not mentioned in state law, if a regulation issued under the authority of state law entered into such a grey area it might be perceived as creating law without lawful authority to do so.

Be it as it may, state agencies (which are part of the Executive Branch) may regulate that which the law does not prohibit them from regulating. DCNR's state parks prohibit the carrying of firearms outside of the residence (tent, camp building, whatever), but state law says you can carry concealed if so licensed. So, no OC in state parks is legal.

[tl_3237]

The prohibition is part of Commonwealth regulations. As others have said its not pre-empted by 18 Pa CSA 6120 since its a Commonwealth agency.


058 Pa Code § 53.7. Use of firearms.

It is unlawful for any person to carry or use firearms on Commission owned or controlled properties except for persons:

(1) Engaged in lawful hunting and trapping under § 53.5 (relating to hunting and trapping).

(2) Licensed to carry firearms under 18 Pa.C.S. § 6109 (relating to licenses) or authorized to do so in conformance with 18 Pa.C.S. § 6106 (relating to firearms not to be carried without a license).

[mrjam2jab]

The preemption statute applies to "counties, municipalities, and townships." The Fish & Boat Commission is none of these, thus they are not bound by preemption. There is new language in HB40 that will prohibit "any Commonwealth agency" from regulating "the possession of firearms in any manner inconsistent with" existing law.

Would this include OC in state parks?

[knight0334]

Would this include OC in state parks?

It should.

[Statkowski]

Would this include OC in state parks?

State parks come under the guidance of Title 17, Conservation and Natural Resources, to wit:

§ 11.215. Weapons and hunting.The following activities are prohibited without written permission of the Department:

(4) Possessing an uncased device, or uncasing a device, including a firearm, archery equipment or slingshot, that is capable of discharging or propelling a projectile, except as provided in paragraph (2) or (7), or except in the owner’s building on a leased campsite, in the owner’s residence, or in the owner’s vehicle or trailer.

So, we can see that 17 Pa. Code § 11.215 prohibits the carrying of any uncased firearms. However, 18 Pa. C.S. § 6109(m.2) reads as follows:

(m.2) Inconsistent provisions.--Notwithstanding the provisions of section 7506 (relating to violation of rules regarding conduct on Commonwealth property), 75 Pa.C.S. § 7727 (relating to additional limitations on operation) or the act of June 28, 1995 (P.L. 89, No. 18), [FN3] known as the Conservation and Natural Resources Act, and regulations promulgated under that act, a firearm may be carried as provided in subsection (a) by:
(1) a law enforcement officer whose current identification as a law enforcement officer shall be construed as a valid license to carry a firearm; or
(2) any licensee.

You'll note that § 6109(m.2) refers to 75 Pa.C.S. § 7727, but that's the statute that authorizes DCNR to issue 17 Pa. Code § 11.215.

DCNR rules say no carry at all (which includes OC), but state law says it's okay if you're licensed and you're CCing.

[t1m0thy]

From my thread about rails to trails.

http://paopencarry.org/Ortiz-v-Commonwealth

Municipal appellants cite a number of cases in support of this proposition, among which are the following. In Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953), Philadelphia was permitted to regulate "matters affecting merely the personnel and administration of the offices local to Philadelphia and which are of no concern to citizens elsewhere" 372 Pa. at 379, 93 A.2d 834 (Emphasis in original). In Warren v. Philadelphia, 382 Pa. 380. 115 A.2d 218 (1955), Philadelphia was permitted to regulate landlord and tenant matters because the ordinance in question did not conflict with the Landlord Act of 1951. In re Addison, 385 Pa. 48, 55, 122 A.2d 272 (1956), held that the although the General Assembly may regulate home rule municipalities in "substantive matters of State-wide concern," "matters affecting merely the personnel and administration of the offices local to Philadelphia and which are of no concern to citizens elsewhere" may not be regulated (Emphasis in original). In Ebald v. Philadelphia, 387 Pa. 407, 128 A.2d 352 (1957), this court reaffirmed its holding in Lennox v. Clark, supra, that the General Assembly may limit the powers of home rule municipalities "in relation to substantive matters of State-wide concern." More recently, in Commonwealth v. Ogontz Area Neighbors Assn., 505 Pa. 614, 483 A.2d 448 (1984), this court held that in dealing with two instrumentalities of the state, a municipal corporation and a state agency, the court would attempt to give effect to the statutes governing both by consideration of the consequences of various interpretations of the governing statutes.

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.

[gnbrotz]

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.

The DCNR has enacted these policies under authority granted to them via Title 17, enacted by the legislature (see Statkowski's post above).

[t1m0thy]

The DCNR has enacted these policies under authority granted to them via Title 17, enacted by the legislature (see Statkowski's post above).

Which was removed by HB1845 as he also stated. That still does not negate the precedential argument in Ortiz applying preemption of the right to bear arms to state agencies as well as municipalities regarding rules and regulations restricting the carry of firearms or ammunition.

Here is where another grey area comes into play if you read Ortiz and the applicable law:

53 Pa.C.S. section 13133. Philadelphia appellants assert that they are limited by the acts of the General Assembly only if those acts are applicable in the entire commonwealth, and the firearms statute is not. In particular, they argue that in Philadelphia County, the legislature requires that a person must be licensed to carry weapons openly and not concealed from sight, 18 Pa.C.S. section 6108, [footnote 1] whereas in all other counties of Pennsylvania, weapons may be carried openly without a license, 18 Pa.C.S. section 6106. [footnote 2]

Since a license is required to carry in Philadelphia and in state parks why is OC legal in Philly and not in state parks. Wouldn't subsection (a) apply to Philly as well because a license is required? Further, if 6109(a) is not applicable to limit OC in Philly, then how is it applicable to limit OC in state parks since a license is required on both accounts?