Article in the PBA Quarterly - Guns in Gov't parks and Buildings

[Toxicodendron11]

A friend of mine showed me this article and I thought it was relevant. Written by John E. D. Larkin. It's 10 pages so in before tl;dr.



ABSTRACT
Section 6120 of Pennsylvania’s Uniform Firearms Act prohibits counties and
municipalities from ‘regulating’ firearms. On the basis of this restriction, special
interest groups have begun an assault on gun-bans in local parks and townhalls,
arguing that rules prohibiting guns in children’s playgrounds and in government
buildings constitute impermissible ‘regulation.’ Because of the statutory
provision that awards successful citizen-litigants their attorneys’ fees, cashstrapped
municipal governments have been reluctant to defend their policies
and, as a result, there is little case law defining the ambit of permissible municipal
rule-making. This Article argues that, on the basis of nearly identical provisions
in Pennsylvania’s Game Law (which prohibits municipal ‘regulation’ of
hunting,) a municipal government does not impermissibly ‘regulate’ unless its
rules apply equally throughout the municipal jurisdiction. Instead, this Article
suggests that municipalities have the same rights as private landowners to promulgate
rules for invitees on government-owned property.


Guns and Parks.pdf

[Statkowski]

One can conclude that Mr. Larkin isn't exactly a fan of Article 1, Section 21 of the Pennsylvania State Constitution.

And he does tend to cherry-pick his anti-gun arguments (is that a surprise?), occasionally comparing apples to oranges.

His babbling could use a good fisking.

[ungawa]

"children’s playgrounds?"

***** puhlease.

Even better:

"children’s playgrounds and in government buildings"

It seems he has two sacred things held in equally highest regard.

[IIIIIREPOIIIII]

"children’s playgrounds?"

***** puhlease.

Even better:

"children’s playgrounds and in government buildings"

It seems he has two sacred things held in equally highest regard.

[JenniferG]

We own those buildings, we elect the government. This man believes he and the government are a separate entity that rule over the people and like the King's forest they have jurisdiction over their usage.

[PhillyVet]

We've all heard these arguments before.. The bottom line is that governments (municipal, etc.) aren't natural people, but legally created entities. As such, they have only those powers/privileges (not rights) grated them by law - the reverse also holds true, as they can be prohibited from doing something that a natural person may be free to do.. Since 6120 prohibits them from regulating firearms, it would (logically) limit any property owners rights in that area as well..

To show the absurdity of this, their is no legal difference between municipally owned parks and roads.. If the "..it's our property, therefore we can regulated it as landlords..." argument was valid, they could prohibit weapons (as the landlord) from the municipal roads as well and completely nullify state LTCF..

[ungawa]

We've all heard these arguments before.. The bottom line is that governments (municipal, etc.) aren't natural people, but legally created entities. As such, they have only those powers/privileges (not rights) grated them by law - the reverse also holds true, as they can be prohibited from doing something that a natural person may be free to do.. Since 6120 prohibits them from regulating firearms, it would (logically) limit any property owners rights in that area as well..

To show the absurdity of this, their is no legal difference between municipally owned parks and roads.. If the "..it's our property, therefore we can regulated it as landlords..." argument was valid, they could prohibit weapons (as the landlord) from the municipal roads as well and completely nullify state LTCF..

Nicely done.

And that one WON'T backfire, because nobody would stand for it.

Paging GL...

[GunLawyer001]

Nicely done.

And that one WON'T backfire, because nobody would stand for it.

Paging GL...

Yeah, that ship has sailed......

Back in 2006, it was just my private theory that we shouldn't push the issue of whether a municipality could have a non-penal "policy" that forbade possession of guns on municipal property, the way that you or I or Walmart can control our own property. Clearly, making possession a summary offense WAS preempted as local "regulation", but a non-penal "policy" that had no fine or jail time attached was just a perk of property ownership. It was better to leave that "policy" issue clouded, because it was useful to be able to bluff 99% of the municipalities out of their policies because they were "probably" preempted.

Others disagreed with me. Others knew better. Others were sure that this was a slam-dunk win for us. So they found one of the few municipalities that had an actual penal statute that made possession of guns in their park a summary offense, and they loudly demanded to be prosecuted, to get that slam-dunk win.

And what happened was what I told you would happen, back in 2006. The appellate court struck down the summary offense, but told everyone in Footnote 9 that the locals might be able to manage their own property in a way that didn't allow guns in their parks and buildings.

It's an interesting point about municipally-owned roads, that if a municipality can have a policy against guns in their owned parks, they could arguably have the same policy against guns in cars on "their" roads. Except that the Commonwealth also preempts that issue, by regulating the transport of firearms in vehicles itself; so the Commonwealth has taken the field and the locals may not regulate (even with a non-penal policy) guns in cars. That's over and above the question of who owns the roads, because even non-state roads have statewide rules for use.

That still leaves open carry, on foot, on municipal sidewalks, which is not regulated by the Commonwealth except in Philadelphia. True, a lot of sidewalks are actually owned by adjacent landowners, yet dedicated to public use, making them unsuited for hoplophobic laws at the municipal level, but the issue has some substance in theory.

My advice, not that everyone will take it this time either, is to not push it, because the state appellate courts aren't on our side, in case anyone's noticed. If you find yourself in a municipal park with a gun, and an agent of the govt (like a cop or borough employee) demands that you take your gun and leave, I would leave, or you risk a state-level trespassing conviction, which isn't going to be just a low-level summary offense.

But maybe someone knows better. Maybe those judges who decided that you aren't "any person" if you're a Pennsylvania resident, who decided that "relief" in a rights-restoration action doesn't include an expungement that will actually restore gun rights, maybe those judges will crack the whip on municipalities managing their own property and side with gun owners this time. And maybe Obama will make new MG's legal with an executive order on his way out.

[ungawa]

Yeah, that ship has sailed......

Back in 2006, it was just my private theory that we shouldn't push the issue of whether a municipality could have a non-penal "policy" that forbade possession of guns on municipal property, the way that you or I or Walmart can control our own property. Clearly, making possession a summary offense WAS preempted as local "regulation", but a non-penal "policy" that had no fine or jail time attached was just a perk of property ownership. It was better to leave that "policy" issue clouded, because it was useful to be able to bluff 99% of the municipalities out of their policies because they were "probably" preempted.

Others disagreed with me. Others knew better. Others were sure that this was a slam-dunk win for us. So they found one of the few municipalities that had an actual penal statute that made possession of guns in their park a summary offense, and they loudly demanded to be prosecuted, to get that slam-dunk win.

And what happened was what I told you would happen, back in 2006. The appellate court struck down the summary offense, but told everyone in Footnote 9 that the locals might be able to manage their own property in a way that didn't allow guns in their parks and buildings.

It's an interesting point about municipally-owned roads, that if a municipality can have a policy against guns in their owned parks, they could arguably have the same policy against guns in cars on "their" roads. Except that the Commonwealth also preempts that issue, by regulating the transport of firearms in vehicles itself; so the Commonwealth has taken the field and the locals may not regulate (even with a non-penal policy) guns in cars. That's over and above the question of who owns the roads, because even non-state roads have statewide rules for use.

That still leaves open carry, on foot, on municipal sidewalks, which is not regulated by the Commonwealth except in Philadelphia. True, a lot of sidewalks are actually owned by adjacent landowners, yet dedicated to public use, making them unsuited for hoplophobic laws at the municipal level, but the issue has some substance in theory.

My advice, not that everyone will take it this time either, is to not push it, because the state appellate courts aren't on our side, in case anyone's noticed. If you find yourself in a municipal park with a gun, and an agent of the govt (like a cop or borough employee) demands that you take your gun and leave, I would leave, or you risk a state-level trespassing conviction, which isn't going to be just a low-level summary offense.

But maybe someone knows better. Maybe those judges who decided that you aren't "any person" if you're a Pennsylvania resident, who decided that "relief" in a rights-restoration action doesn't include an expungement that will actually restore gun rights, maybe those judges will crack the whip on municipalities managing their own property and side with gun owners this time. And maybe Obama will make new MG's legal with an executive order on his way out.

There are no sidewalks where I live. People run or jog on roads. Even if you have sidewalks, what happens if you have to cross the street? You seem to be limiting the discussion to a distinction between being on a conveyance on a road or on foot on a sidewalk.

I'm just throwing these things out there because I thought PhillyVet brought up something very interesting. You seemed to dismiss my comment, then recognized his as interesting, then quickly dismissed his as well within a very limited scope that does not represent reality. I'm happy to dispute you, as you know, but I am not disputing you. I'm trying to collaborate to take a good look at this. Thanks.

[JenniferG]

The municipality is owned by the taxpayers. There is no ownership by a government there is only stewardship and those stewards are obligated to uphold the laws of the Commonwealth.