Pittsburgh Reportedly Considering Sweeping Gun Control

The NRA has received copies of what are reported to be draft ordinances being considered by the Pittsburgh City Council to enact sweeping gun control measures within the city.

It appears that Mayor Bill Peduto’s office is sending the drafts to mayors of other large cities, encouraging them to follow suit.

Yet if the drafts were enacted as written, the resulting ordinances would infringe fundamental rights, violate state law, and stick municipal taxpayers with hefty legal fees for the inevitable court challenges the new laws would provoke.

To the extent the Pittsburgh Mayor’s Office may be encouraging its counterparts to follow suit in other states with strong firearm preemption laws, it would be soliciting similar unlawful acts on their parts as well.

The documents received by the NRA contain three draft municipal ordinances to be added by the Council of the City of Pittsburgh to the local Code of Ordinances. It’s unclear whether all three are meant to be introduced simultaneously, as two of them overlap substantially.

One is an “assault weapon” ban that superficially appears to have been modeled on the failed federal ban in effect from 1994 to 2004. It would ban select-fire machine guns, an array of named semiautomatic firearms, as well as semiautomatic rifles and pistols that have two or more of various specified features.

Yet also prohibited would be any firearm that has “the ability to accept” a magazine with a capacity in excess of 10 rounds. This would prohibit essentially all semiautomatic and many manually-loaded firearms, except for specific exemptions that apply to .22 caliber and lever action firearms with tubular magazines.

The ordinance would become effective 60 days after enactment and would grandfather in those who lawfully owned the newly-banned guns before the law’s effective date.

A separate draft proposes to ban a large array of semiautomatic firearms, “semiautomatic modifications” that “accelerate the rate of fire” of a semiautomatic firearm, “large capacity” magazines (i.e., those capable of holding more than 10 rounds), and various types of ammunition.

This ordinance specifically targets centerfire, semiautomatic firearms that have any one of various named features, most of which are common on commercially available guns, or any semiautomatic rifle with an overall length of less than 30”.  Also included would be semiautomatic shotguns configured in common ways.

The ordinance would additionally prohibit various types of ammunition specified by design or caliber. These would include a wide array of non-lead bullets, .50 BMG rifle ammunition, and tracer rounds, among other things.

Firearms, as well as air guns, that have prohibited modifications would also be banned. These include guns equipped with specifically named accessories – such as “bump stock[s],” “binary triggers,” and “trigger cranks” –  and anything else the city considers to “accelerate the rate of fire” of the gun.

Like the other proposed gun ban, this one would take effect 60 days after enactment. Unlike the other proposal, however, it contains no grandfather clause for those who had previously acquired their property lawfully. Mere possession of the banned “firearms,” magazines, or ammunition would be enough to trigger a violation.

The third draft is a gloss on the increasingly common “extreme risk protection order” concept that would empower courts to order seizures of firearms from supposedly high risk persons.

Like the worst of these laws, the proposal would authorize such seizures even before the respondent had a chance to rebut the allegations against him or her. Merely having recently acquired a firearm, moreover, would be evidence the court would have to weigh against the respondent in deciding whether to issue the order. The issuance of a temporary or long-term seizure order would trigger a search warrant for firearms, even though the petitioner would not have to produce any actual evidence of firearm possession.

The draft, in other words, ignores basic concepts of constitutional law in its zeal to empower authorities to confiscate guns from people who in many cases will have done nothing illegal or threatening to others.

It also provides absolutely no other mechanisms to stabilize or incapacitate the supposedly high risk subject of the order, other than imposing firearm prohibitions and seizures.

Each of the proposed ordinances, on its face, would be bad policy, constitutionally suspect, and ineffective in preventing or reducing firearm-related crime.

If that weren’t enough to caution against them, however, all three would be squarely prohibited by Pennsylvania state law.

Like most other U.S. states, Pennsylvania reserves regulation of firearms to the state legislature. State law is clear that “[n]o 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 purposes not prohibited by the laws of this Commonwealth.”

Pittsburgh should be under absolutely no illusions about its local authority to regulate firearms, or to prohibit “assault weapons” in particular, having already lost a preemption challenge to a previous assault weapon ban in the 1996 case of Ortiz v. Commonwealth.

There, the Pennsylvania Supreme Court dismissed as “frivolous” Pittsburgh’s and Philadelphia’s attempt to defend their assault weapon ordinances as “fundamental” to their status as home rule municipalities.

“By constitutional mandate, the General Assembly may limit the functions to be performed by home rule municipalities,” the court wrote.

It continued:

Because the ownership of firearms is constitutionally protected, its regulation is a matter of statewide concern. The [Pennsylvania] 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.

Other cases have invalidated different regulations prohibiting otherwise lawful firearm related conduct under the state’s preemption law. These include one where the Pennsylvania Supreme Court invalidated yet another Philadelphia “assault weapon” ban in 2008.

In other words, it has been repeatedly established beyond any reasonable doubt that Pittsburgh lacks the authority to enact any of the provisions included in the draft ordinances, particularly banning categories of firearms that are lawful in other parts of Pennsylvania. Any further attempt to do so would accordingly be a transparent and exploitative political stunt, not a serious attempt to legislate in the public interest.

Despite all this, Pittsburgh’s mayor Bill Peduto has publicly embraced the concept of the city trying to enact its own gun control and of encouraging his counterparts in other cities to do so as well. A local press reportmentioned “[d]rafts of three local gun-reform bills” that were attached to the email letter Peduto sent to the other mayors as part of this effort.

If in fact those drafts are the same as those now in possession of the NRA, they evidence not just a lack of imagination and of insight into violent crime, but a wholesale disregard of the rule of law and of the fundamental rights of Pittsburgh citizens.

When lawbreaking becomes good politics, all decent people suffer. Hopefully cooler heads prevail before that again becomes the case in Steel City.

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Dean Weingarten