Ortiz v. Commonwealth of Pennsylvania
[J-1O3-96]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COUNCILMAN ANGEL ORTIZ AND : No. 18 Middle District
COUNCILMAN DAVID COHEN AND : Appeal Docket 1995
COUNCILWOMAN JANNIE L. BLACKWELL :
AND AL STEWART, WARD LEADER OF
11TH WARD AND CANDIDATE FOR CITY :
COUNCIL FOR THE 8TH DISTRICT AND :
GREGORY BEAU PAULMIER, WARD
LEADER OF THE 12TH WARD AND :
PHILADELPHIA ANTI-DRUG/ANTI- :
VIOLENCE NETWORK (PANN) AND
CONSUMER EDUCATION AND PROTECTIVE :
ASSOCIATION (CEPA) AND FATHERS
DAY RALLY COMMITTEE AND THOMAS P.
CRONIN, PRESIDENT, AMERICAN
FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES (AFSCME)
DISTRICT COUNCIL 47 AND DR. PAUL
FINK, ASSOCIATE VICE PRESIDENT,
ALBERT EINSTEIN MEDICAL SERVICES
AND WILFREDO ROJAS, PRESIDENT
PHILADELPHIA. CHAPTER OF THE
NATIONAL CONGRESS or PUERTO RICAN :
RIGHTS AND FELLOWSHIP COMMISSION :
AND BENJAMIN RAMOS, DEMOCRATIC
CANDIDATE FOR THE 180TH STATE
LEGISLATIVE DISTRICT, AND CITY OF
PITTSBURGH, INTERVENOR,
Appellants : Appeal from the order
: and opinion at the
: Commonwealth Court of
: Pennsylvania dated February
V. : 14, 1995, at No. 475 M.D.
: 1994, which granted the
: preliminary objections of
: the appellees and dismissed
: the case.
COMMONWEALTH OF PENNSYLVANIA AND
HONORABLE THOMAS J. RIDGE,
GOVERNOR AND HONORABLE ERNEST D. :
PREATE, JR., AND LYNNE ABRAHAM,
DISTRICT ATTORNEY OF PHILADELPHIA, : _____Crnwlth. Ct. ______
ARGUED: May 1, 1996
Appellees 655 A.2d 194 (1995)
OPINION OF THE COURT
MR. JUSTICE FLAHERTY
The issue raised in this case is whether two home-rule
municipalities, Philadelphia and Pittsburgh, may through the
passage of ordinances regulate the ownership of so-called assault
weapons when the General Assembly has passed a statute prohibiting
them from doing so.
Councilman Angel Ortiz, et al. (the Philadelphia appellants)
brought this action in Commonwealth Court for declaratory and
injunctive relief. The Philadelphia appellants sought to enjoin
the Commonwealth's preemption of Philadelphia'; regulation of
assault weapons and declare it in Violation of the Constitution of
Pennsylvania, the home rule charter, and the Home Rule Enabling
Act, 53 Pa.C.S. 13101 et seq. The chancellor denied the
Philadelphia appellants' request for preliminary injunction and
held that the General Assem~ly preempted the city's attempt to
regulate assault weapons.
Appellees (the Commonwealth) filed preliminary objections in
the nature of a demurer to the Philadelphia appellants' complaint
seeking declaratory and injunctive relief. Oral argument was held
on the preliminary objections before Commonwealth Court en banc.
subsequent to oral argument, Pittsburgh filed a petition to
J-103 -96-2
intervens, which was granted. On February 14, 1995, the en banc
commonwealth Court granted the Commonwealth's preliminary
obections and dismissed the request for injunctive and declaratory
relief for failure to state a cause of action, This appeal
followed.
Commonwealth Court's rationale was that Article 9, Section 2
of the Constitution or Pennsylvania provides that although
municipalities have the right to adopt home rule charters, their
authority is limited by the conwtitution and acts of the General
Assembly. The General Assembly has enacted a statute which
preempts the ability of municipalities to regulate firearms, and
Philadelphia's ordinance, which purports to impose such regulation,
is, therefore, invalid.
Article 9, section 2 of the constitution of Pennsylvania
provides:
Municipalities shall have the right and power
to frame and adopt home rule charters.
Adoption, amendment or repeal ot a home rule
charter shall be by referendum. The Qeneral
Assembly shall provide the procedure by which
a home rule charter may be framed and its
adoption, amendment or repeal presented to the
electors. If the General Assembly does not so
provide, a home rule charter or a procedure
for framing and presenting a home rule charter
may be presented to the electors by initiative
or by the governing body cf the municipality.
A municipality which has a home rule charter
May exercise any power or perform any function
not denied bv this Constitution. by its home
rule charter or by the General Assembly at any time.
J-103-96-3
(Emphasis added.) On June 17, 1993, the Mayor of Philadelphia
signed and approved Bill No. 508, submitted by the city council,
which banned certain types of assault weapons in Philadelphia
County. In November of 1993, the City of Pittsburgh passed
ordinance 30-1993, which also banned certain specified assault
weapons within Pittsburgh's physical boundaries. It is undisputed
that these ordinances purport to regulate the ownership, use,
possession or transfer of certain firearms.
After these ordinancew were enacted the General Assembly
passed House Bill 185, which amended Title 18 of the Crimes Code,
including the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. ss6101-
6124, The amendment, which appears at I8 Pa.C.S, ss6120, provides:
(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 carriad or
transported for the purposes not prohibited by
the laws of this Commonwealth.
(b) Definition. For the purposes of this
section the term "firearms" has the meaning
given in Section 5515 (relating to prohibiting
of paramilitary training) but shall not
include "air rifles" as defined in Section
6304 (relating to sale and use of air rifles).
18 Pa.C.S. ss 5515 provides:
"Firearm." Any weapon which is designed to or
may readily be converted to expel any
projectile by the action Of an explosive; or
the frame or receiver of any such weapon.
J-103-96-4
The sum of the case is that the Constitution of Pennsylvania
requires that home rule municipalities may not perform any power
denied by the General Assembly; the General Assembly has denied
municipalities the power to regulate the ownership, possession,
transfer or possession cf firearms; and the municipalities seek to
regulate that which the General Assembly has said they may not
regulate. The inescapable conclusion, unless there is more, is
that the municipalities' attempt to ban the possession of certain
types of firearms is constitutionally infirm.
The appellants, however, insist that there is more. The
Philadelphia appellants argue the Pennsylvania Uniform Firearms Act
is not uniform, and the prohibition against ordinances regulating
firearms, therefore, is invalid. This argument has its basis in
the Home Rule Statute governing cities of the first class, namely,
Philadelphia:
No city shall exercise any powers or authority
beyond the city limits except such as are
Conferred by an act of the General Assembly
and no city shall engage in any proprietary or
private business except as authorized by the
General Assembly. Notwithstanding the grant
of powers contained in this act, no city shall
exercise powers contrary to or in limitation
or enlargement of, powers granted by acts of
the General Assembly which are --
* * *
(b) Applicable in every part of the
Commonwealth.
(0) Applicable to all the cities of the
Commonwealth.
J-103-96-5
53 Pa.C.S.ss13133. 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. 6108,1
whereas in all other counties Of Pennsylvania, weapons may be
carried openly without a license, 18 Pa,C.S. ss 6106. 2
This arqument is plainly without merit. 18 Pa.C.S. ss6120,
the act limiting municipal regulation of firearms and ammunition,
applies in every county including Philadelphia. The fact that one
section of the Uniform Firearms Act does not apply in every county
is immaterial.
1 The Philadelphia appellants argue:
Only in Philadelphia must a person obtain a
license for carrying any firearm, on a public
street or public property, regardless of
whether it is unconcealed or concealed.
Throughout the rest of the Commonwealth, a
license is only neocesary if one is carrying a
concealed firearm or is carrying one in a
vehicle. 18 Pa.C.S.A. 6106(a).
Philadelphia appellants reply brief at 12.
2 Municipal appellants also argue that the regulation of
firearms is not uniform because 18 Pa.C.S.ss6109 (e) (2) imposes
requirements for the issuance of a licence to carried concealed
weapons in Philadelphia not imposed in any other county. House
Bill 110, which eliminates any non-uniformity in licensing, was
signed into law on June 13, 1995,
J-l03-96-6
Next, the Philadelphia appellants, joined by the city of
Pittsburgh, argue that although the General Assembly may restrict
home rule power to some extent, it may not limit "the ability to
perform the basic administrative functions of a municipal
government and the ability to fulfill a fundamental purpose for
which the City government exists. In particular, appellants
assert that "the right of a city to maintain the peace on its
streets through the regulation of weapons is intrinsic to the
existence of the government of that city and, accordingly, an
irreducible ingredient of constitutionally protected Home Rule."
Appellants' Brief at 15.
In order to prevail in this argument, appellants would have to
establish at a minimum that in matters concerninq their
"fundamental purpose," home rule municipalities may override
limitations on their power set by the General Assembly, and that
regulating assault weapons concerns this fundamental purpose.
This claim is frivolous. Article 9, section 2 of the
Constitution of Pennsylvania provides:
A municipality which has a home rule charter
may exercise any power or perform any function
not denied by this Constitution, by its home
rule charter or by the General Assembly at any
time.
By constitutional mandate, the General Assembly may limit the
functions to be performed by home rule municipalities.
J-lO3-96-7
Next, appellants claim that various decisions of this court
require that home rule municipalities may be restricted in their
powers only when the General Assembly has enacted statutes on
matters of statewide concern. Although we agree with appellants
that the General Assembly may negate ordinances enacted by home
rule municipalities only when the General Assembly's conflicting
statute concerns substantive matters of statewide concern, this
does not help the municipal appellants, for the matters at issue in
_________________________________________________________
3 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 (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 tho 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.
Ogontz is irrelevant to the question of statewide matters of
substance versus purely local matters, since it concerns
conflicting powers of two state entities, not conflicts between the
General Assembly and a municipality. Warren also is irrelevant,
since it did not involve a conflict between state and municipal
regulation. The remaining cases merely stand for the proposition
that the General Assembly may negate odinances enacted by home
rule municipalities only on substantive matters cf statewide concern.
J-1O3-96-8
this case are substantive matters of statewide concern. Article 1,
Seotion 21 of the Constitution of Pennsylvania provides:
The right of the citizens to bear arms in
defense of themselves and the state shall not
be questioned.
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.
For the foregoing reasons, the order of Commonwealth Court is
affirmed.
Mr. chief justice Nix did not participate in the consideration
or decision of this case.
Madam Justice Newman did not participate in the consideration
or decision of this case.
J-103-96-9
DISSENTING OPINION
MR. JUSTICE NIGRO DECIDED: JULY 18, 1996
I cannot agree with the Majority and therefore must
respectfully dissent. In my opinion. whenever the state
legislature fails to enact a statute to address a continuing
problem of major concern to the citizens of the Commonwealth, a
municipality should be entitled to enact its own local ordinance in
order to provide for the public satety, health and welfare of its
citizens.
Since Philadelphia County is besieged by a multitude of
violent crimes which occur involving a variety of hand guns and
automatic weapons it is fundamentally essential that the local
government enact legislation to protect its citizens whenever the
state legislature is unable or unwilling to do so.
J-103-96-2