It’s been two years since the push to expand background checks for gun purchases in the wake of the Sandy Hook Elementary massacre fell short in the Senate. Since then, the gun-law debate has receded in Washington. But it is flaring in the states, where advocates on both sides see more hope for action than in the gridlocked capital. And at the moment, the most remarkable fight may be the one shaping up in Pennsylvania, where the National Rifle Association is facing off not against big national gun-control groups, but against many of the state’s towns and cities, in a brazen push to get them to repeal their gun-related laws.
It all started about five years ago, when a group of Pennsylvania cities, frustrated with the difficulty of getting gun-law reforms passed in the Republican-controlled state legislature, started passing laws and ordinances on their own. Their highest priority was requiring gun owners to report lost or stolen guns—a law that was intended to make it harder for gun traffickers to claim, after a crime gun was traced back to them, that the gun had been lost or stolen before the crime was committed. Most of the states bordering Pennsylvania had such a law, but it was going nowhere in Harrisburg. Eventually, more than 100 towns and cities passed the requirement. “The state was not taking any action on it and by putting together support at the grassroots level and showing that mayors and council could take action, we hoped it would compel action at the state level,” says Pittsburgh Mayor Bill Peduto, who was on the city council at the time. “It’s the grassroots level that brings change to state capitals and then Washington, D.C.”
Such laws are anathema to the gun lobby, which argues they violate the Fifth Amendment’s bar against self-incrimination, since reporting a lost or stolen gun might implicate someone for other violations. Gun-rights advocates have also been peeved over another set of ordinances passed by Pennsylvania towns, banning guns from parks or other public areas, as well as by laws passed by Philadelphia that, among other things, limit assault weapons and gun ownership for domestic-violence abusers. Gun-rights groups argue that most of the local laws are in violation of a 1974 state law that bars municipalities against passing restrictions that are pre-empted by state gun laws. But they have had trouble getting the laws overturned, because that requires finding someone who can show injury from the laws to bring a lawsuit challenging them.
So the gun lobby got the state legislature to change the rules of the game. Late last year, Pennsylvania lawmakers passed a bill, loosely modeled on a Florida law, to make it possible for any state resident or any gun-rights group to which they belong to challenge local gun laws in court. The law, Act 192, is an explicit carve-out for gun-rights groups from customary legal procedures—challenges of school-prayer restrictions, for instance, are typically brought by actual students who can show that their rights have been infringed by the restrictions. Not only that, but the law requires that towns and cities pay the legal fees of any plaintiffs who successfully challenge their gun laws in court.
In other words, the NRA, with its headquarters in northern Virginia and annual revenues well above $200 million, can sue towns and cities, and expect them to pay its costs if it wins.
And, almost immediately, the lawsuits have arrived. The NRA has sued Philadelphia, Pittsburgh, and Lancaster, a town with a population of 59,325. (Lancaster probably ranked as a prime target since its mayor has served as the chairman of the state chapter of Mayors Against Illegal Guns, the group co-founded by former New York mayor Michael Bloomberg.) A Pennsylvania-based gun-rights group, Firearms Owners Against Crime, has sued Harrisburg, as has a Texas-based pro-gun rights legal outfit called U.S. Law Shield.
Meanwhile, many towns and cities across the state—from Norristown and Franconia outside Philadelphia to Munhall and Clairton in the Monongahela Valley to Erie on the shores of the Great Lakes—have rushed to repeal their gun-related ordinances, worried they won’t be able to afford to fend off these legal actions or, worst case, pay the NRA’s legal bills, alongside their school and snow-removal budgets. “These are risk-free lawsuits. You might get your fees covered or at the least, you get towns to drop their laws. It’s a jobs program for gun-lobby lawyers and an NRA bullying tactic for local towns,” says Shira Goodman, director of CeaseFire PA, the state’s main gun-control group. “They’re giving special rights to the NRA.”
The NRA and its lawyer in Pennsylvania did not respond to requests for an interview. But Kim Stolfer, chairman of the Firearms Owners Against Crime, which played a leading role in getting Act 192 passed, gave a vigorous defense of the law. He said that the local ordinances forbidding guns on public property were weaker than state laws already on the books forbidding guns on school grounds and in courthouses. The ordinances, he added, had nonetheless caused legal hassles for law-abiding gun owners, such as a man who was arrested for moving his gun from his luggage to his person in a nonsecured part of the Pittsburgh airport. Local authorities rarely press these cases, he said, likely because they know the laws are on shaky ground, but not before gun owners incur hefty legal fees.
As for the laws requiring reporting of lost and stolen guns, Stolfer said, there is little evidence of their effectiveness, given how few cases local authorities bring against straw purchasers, people who buy guns and then pass them on to those who are forbidden to purchase firearms or don’t want their names on record. “They have no reason to enact local laws except to make a statement or for political demagoguery,” he said. “They want a collective network of laws that are so ambiguous that they create fear of prosecution and uncertainty for people that own guns as to whether they can be held liable.”
And he sees nothing wrong with gun-rights groups getting the right to challenge local laws, regardless of whether they’ve been personally injured. It was no different, he said, than the NAACP being able to bring a case “against a restaurant that says ‘no blacks allowed.’ ” “Why should you have to violate a law and be prosecuted before you’re able to challenge it?” he said. “Why should we take a civil right and have people have to go to jail and then challenge it?”
The cities in the sights of Stolfer’s group and the NRA scoff at these arguments. State laws regarding guns on public grounds are not adequate, they say—for one thing, the rule banning guns in courthouses exposes the many government offices that are not in courthouses. (In 2013, three people were killed in a shooting at a township meeting in the Poconos.) And just because there haven’t been many straw-purchasing cases brought doesn’t mean the lost-and-reporting rule isn’t helping the police track down some missing guns, says Lancaster Mayor Rick Gray, a Democrat who, like his Republican predecessor, has kicked in $1,000 of his own money for a local legal defense fund to take on the NRA. “The NRA will say, ‘This is just window-dressing, they haven’t prosecuted anybody.’ But then why are you filing a lawsuit against a law that doesn’t have any effect to it?”
As for the provision giving the NRA the right to sue, he said, it’s a blatant carve-out. “Lobbies like the NRA are … special interests,” he said. “They do everything they can to make sure the decisions affecting them are made by the people they have the most control over. They don’t have control over mayors ... and they do have control over the General Assembly.”
Lancaster, Pittsburgh, and Philadelphia are not only not backing down in the face of the NRA lawsuits; they have filed one of their own against the state, arguing that Act 192 is unconstitutional because, in the legislature’s rush to get it passed before Republican Gov. Tom Corbett lost his bid for re-election, they attached it to a measure having to do with the theft of scrap metals. This, the cities say, violates the state constitution’s bar against passing unrelated measures in a single law. That lawsuit is now pending in the state’s Commonwealth Court.
Regardless of how the legal battle ends, the Pennsylvania showdown points to the essential conundrum in having the gun debate devolve to the state and local level in the face of a Washington stalemate. On the one hand, it makes sense for cities grappling with gun violence to pass laws suited to their circumstances, and to political environments where there is more support for sensible gun laws than the conventional wisdom about the NRA’s power might suggest. But on the other hand, such a patchwork approach opens itself up to the argument of gun-rights groups that it causes confusion on the part of gun owners or conflicts with state laws. Not to mention that the patchwork approach is often less effective—since guns travel easily across local and state borders, lost-and-stolen reporting laws or background checks are far more effective if they’re universal.
This is the bind that Rep. Patrick Harkins, a Democrat from Erie County, was in when Act 192 came up last year. He said he sees why some cities would want tougher gun laws than the state’s rural areas, but also worries about the legal “hodgepodge” this creates across the state. At the same time, he was bothered by the bill’s provision giving the NRA and other gun-rights groups a special right to sue and collect legal fees. “I don’t like that,” he said. “The Founders would be ashamed of something like that. That’s tug of war by the bully.”
Yet he voted for the bill, which passed easily. Was it the pressure of the NRA? Not in his own case, he said, but plenty of his colleagues in Harrisburg are “beholden” to it. “The NRA,” he said, “has got people here by the short and curlies.”