By Christine Vendel
A Dauphin County Judge on Wednesday struck down three of Harrisburg’s five gun ordinances, concluding they are illegal under Pennsylvania law.
Judge Andrew H. Dowling granted a preliminary injunction for the ordinances that prohibit possession of guns: in parks, during a state of emergency and by unaccompanied minors. The ordinances are unenforceable, starting Wednesday.
Dowling also ruled preliminarily that the city’s ordinances prohibiting discharge of guns and requiring gun owners to report lost or stolen guns are valid and do not violate Pennsylvania’s Uniform Firearms Act, which gives the state preemption in regulating firearms.
The ruling establishes how the ordinances should be viewed as the case plays out in court.
City officials have 30 days to decide whether they want to appeal the temporary ruling. City officials could not be reached for comment.
Dowling’s ruling stems from a lawsuit filed against Harrisburg by attorney Justin McShane, who represents a gun rights group known as U.S. Law Shield. McShane is planning a news conference at 2 p.m. Wednesday.
“This is a victory for law abiding gun owners,” he said, according to a news release.
READ: Story from McShane’s news conference.
The Law Shield group had legal standing to sue Harrisburg under a new state law known as Act 192, that provided legal standing to gun owners even if they could not prove that they had been harmed.
McShane had sought to get all five ordinances tossed as illegal, while city attorneys argued that all five ordinances were legal.
Attorneys for the city had also asked the judge to hold off on ruling in the case whileconstitutionality of Act 192 was being weighed in Commonwealth Court.
But Dowling wrote in his ruling that the timing and effect of that decision was uncertain. He also noted he must be guided by the principal that the law is presumed to be constitutional.
“Furthermore,” he wrote, “the constitutionality of the added standing provisions are being challenged not the underlying preemption section of the Uniform Firearms Act.”
The judge said the three Harrisburg ordinances that he struck down went beyond state law, and therefore regulate “lawful” conduct, which is forbidden under the Uniform Firearms Act.
For the ordinance regarding minors, for example, the state law has an exception for hunting while the city ordinance did not.
Likewise, the city’s ordinance prohibiting possession of guns during a state of emergency did not contain an exception for licensed gun owners as state law does.
Meanwhile, the city prohibited guns in parks while state law does not. Attorneys for the city argued unsuccessfully that state regulations prohibit the carrying of guns in parks.
Dowling sided with the city on its discharge ordinance, saying that the state’s third class code allows cities to regulate the discharge of guns. There was no conflict with state law, because state law does not regulate gun discharges, Dowling wrote.
“This Court is not persuaded by the plaintiffs’ argument that the discharge ordinance violates the Uniform Firearms Act because it does not contain exceptions for self-defense or for a police officer discharging a firearm in the line of duty,” he wrote. “It would be illogical for the ordinance to be interpreted this way or for such persons to be cited in either scenario.”
Still, Dowling hinted the city’s ordinance may not be well-written and advised city officials to “amend the ordinance to be clarified.”
Dowling also upheld the city’s requirement that gun owners report lost and stolen guns by saying the ordinance does not regulate lawful gun ownership. There are no state laws that regulate lost or stolen firearms, Dowling said.
In his concluding remarks, Dowling suggested the outcome of the Commonwealth Court case about the constitutionality of Act 192 would not change the legality of the three ordinances he struck down.
“Even if Act 192 is declared unconstitutional, it would only make it more difficult to
challenge the city ordinances but not affect the underlying preemption section of the Uniform Firearms Act,” he wrote. “The preemption section, enacted in 1974, is clearly constitutional and its constitutionality is not being challenged.”
Dowling noted that city attorneys have suggested that the gun ordinances are in the interest of public safety to reduce gun violence. Although a laudable goal, he noted it was unknown whether the ordinances in question had any appreciable deterrent effect.
“Gun violence is not unique to the City of Harrisburg but is a statewide concern necessitating uniform laws,” he wrote. “The interest of public safety is protected by enforcing state law.”
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