[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


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