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Gun law challenge receives new life

State Supreme Court rules people can sue over restrictions even without being charged

HARRISBURG — People can sue to challenge a city’s gun restrictions even if they have not been charged with violating them, Pennsylvania’s highest court ruled Wednesday.

A divided state Supreme Court said that Firearm Owners Against Crime and other plaintiffs have legal standing to take on the Harrisburg city gun ordinances. At issue are local laws with criminal penalties for discharging a gun outside a gun range, possessing guns in parks, failing to report lost or stolen guns within two days or unaccompanied children having firearms outside their homes.

The majority opinion in the 4-3 decision said the plaintiffs do not have to wait until they are charged with violating the ordinances before challenging them on constitutional grounds. The decision comes after years of work by Republicans in the state Legislature to prevent local governments from enacting gun laws that are more restrictive than what the state law imposes, and to widen who may sue to overturn such ordinances.

Kim Stolfer, who heads up the firearm owners’ group, said Wednesday he expects the case to return to a lower court where the underlying merits of their case will be decided.

“No citizen should face prosecution for exercising a constitutional right,” Stolfer said. “And that’s essentially what Harrisburg wanted us to go through to be qualified in this action to take on their illegal ordinances.”

Harrisburg Mayor Eric Papenfuse, a defendant along with the city and its police chief, said the lost-and-stolen ordinance has helped city police take on the illegal gun trade, an enforcement effort that removed 153 illegally possessed guns from Harrisburg’s streets this year.

He called the decision a dangerous precedent.

“We absolutely plan to defend our ordinances with all of our might,” Papenfuse said Wednesday. “I think the ruling was good news for lawyers and the gun lobby but terrible news for both the residents of Harrisburg and the residents of the commonwealth.”

The decision centered on the legal issue of standing, or who is allowed to sue and under which circumstances, under the Pennsylvania Declaratory Judgments Act.

People generally need to show they have been harmed by a law in order to challenge it, but Justice Sallie Mundy outlined cases in which that standard has been modified to permit lawsuits that put people in the position of complying with a law or giving up their rights.

Justice David Wecht, voting with the majority, wrote in a concurrence that standing “has evolved” to permit pre-enforcement review of governmental enactments.

“We do not require plaintiffs to violate laws or regulations and subject themselves to sanctions for engaging in protected conduct as the price of admission to the courthouse,” Wecht wrote.

In a dissent, Justice Max Baer said the plaintiffs have not claimed they engaged in conduct prohibited by law or that they intend to.

“Accordingly, I would hold that (they) have failed to establish a substantial, direct and immediate interest sufficient to afford them standing,” Baer wrote.

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