Cite as Ortiz v. Commonwealth, - Pa. -
545 Pa. 279, 681 A.2d 152 (1996)
Councilman Angel Ortiz and Councilman David Cohen and 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 of Puerto Rican Rights and Fellowship Commission and
Benjamin Ramos, Democratic Candidate for the 180th State
Legislative District, and City of Pittsburgh, Intervenor,
Appellants,
v.
Commonwealth of Pennsylvania and Honorable Thomas J. Ridge,
Governor and Honorable Ernest D. Preate, Jr., and Lynne Abraham,
District Attorney of Philadelphia, Appellees.
Supreme Court of Pennsylvania.
Argued May 1, 1996.
Decided July 18, 1996.
Reargument Denied Sept. 24, 1996.
Samuel C. Stretton, Robert M. Jaffe, Stanley Shapiro,
Philadelphia, for Appellants.
Greg Teufel, Craig E. Frischman, David G. Ries, Pittsburgh,for City of Pittsburgh.
David Cohen, pro se.
Fredrick Cabeil, Jr., Calvin Koons, John G. Knorr, Office of the Attorney General, for Appellees.
Gregory Dunlap, Harrisburg, for the Governor.
Before FLAHERTY, ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.
OPINION OF THE COURT
FLAHERTY, Justice.
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's 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. section 13101 et seq. The chancellor denied the
Philadelphia appellants' request for preliminary injunction and
held that the General Assembly preempted the city's attempt to
regulate assault weapons.
Appellees (the Commonwealth) filed preliminary objections in
the nature of a demurrer 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
intervene, which was granted. On February 14, 1995, the en banc
Commonwealth Court granted the Commonwealth's preliminary
objections 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 of Pennsylvania provides that although
municipalities have the right to adopt home rule charters, their
authority is limited by the Constitution and by 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 of a
home rule charter shall be by referendum. The General 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 of the municipality. 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.
(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 ordinances 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.
sections 6101-6124. The amendment, which appears at 18 Pa.C.S.
section 6101 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 carried 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. section 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.
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 all
municipalities the power to regulate the ownership, possession,
transfer or possession of 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.
(c) Applicable to all the cities of the Commonwealth.
53 Pa.C.S. section 13133. 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. section
6108, [footnote 1] whereas in all other counties of Pennsylvania,
weapons may be carried openly without a license, 18 Pa.C.S. section
6106. [footnote 2]
This argument is plainly without merit. 18 Pa.C.S. section
6120, 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.
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 concerning 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.
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. [footnote 3] 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 this case are substantive matters of statewide
concern. Article 1, Section 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.
NIX, C.J., and NEWMAN, J., did not participate in the
consideration or decision of this case.
NIGRO, J., files a dissenting opinion.
NIGRO, Justice, dissenting.
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 safety, 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.
FOOTNOTES
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
necessary if one is carrying a concealed firearm or is
carrying one in a vehicle. 18 Pa. C.S. section 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. section 6109(e)(2) imposes
requirements for the issuance of a license to carry 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.
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, 93 A.2d 834 (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 the 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 state wide 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 ordinances enacted by home
rule municipalities only on substantive matters of statewide
concern.