A closer look at the legal arguments for and against Pittsburgh’s gun control proposals

Could it happen here?

Open-carry gun supporters rally outside Pittsburgh's City-Council Building waving "Don't Tread on Me" flags.

Open-carry gun supporters rally outside Pittsburgh's City-Council Building waving "Don't Tread on Me" flags.

Erica Dietz / For The Incline

Pittsburgh officials won’t say what their legal strategy is for defending a raft of local gun control measures that are all but certain to draw a legal challenge if and when they’re adopted.

There are prior indications, though, that a 2008 U.S. Supreme Court decision will be invoked as Pittsburgh finds itself the latest litmus test in a recurring legal battle surrounding the limits of the Second Amendment or lack thereof.

Pittsburgh lawmakers, led by Mayor Bill Peduto and council members Corey O’Connor and Erika Strassburger, unveiled the legislative package last month. It includes a proposed city-wide ban on semi-automatic firearms known as “assault weapons,” new restrictions on certain gun accessories, and a provision that would make it easier to confiscate guns from individuals deemed an “extreme risk” for committing gun violence.

“If we have to do it again, we’ll do it again,” Peduto said of being sued, referencing a lawsuit that coincided with a prior gun control effort undertaken in Pittsburgh when he was a member of council.

But asked to explain their legal standing in the face of a new lawsuit and criticism from Allegheny County’s District Attorney, who argues they have no legal standing, city officials have declined to tip their hand.

“Sorry, we’re not talking about our legal strategy on the bills,” mayoral spokesperson Tim McNulty wrote in a Tuesday email to The Incline.

In a legislative overview provided to reporters back in December, the city gives slightly more.

District of Columbia v. Heller

The overview cites the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller as justification for the proposed ban on semi-automatic weapons and a proposed ban on accessories like bump stocks and high-capacity magazines. It’s a legal precedent that’s been commonly invoked in attempts to ratchet up restrictions on firearms in cities and states across America.

The Heller decision followed a 2003 lawsuit filed against a then-decades old Washington, D.C., ban on handgun possession, even in the home. The court’s Heller decision or opinion, delivered by late Justice Antonin Scalia, struck down the handgun possession ban but included language that has since been used to bolster legislative attempts to restrict other kinds of firearms.

Pittsburgh’s legislative overview includes references to that very language, which held, among other things, that Second Amendment rights aren’t unlimited, and that the constitutional right to bear arms “is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The opinion also cites an “historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

Advocates for tighter restrictions on the kinds of semi-automatic firearms used in most U.S. mass shootings, including the one at Pittsburgh’s Tree of Life synagogue in October, view Heller’s language as an implicit endorsement from the highest court in the land. In fact, the Heller decision did not directly address the question of assault weapons and instead left room for legal interpretation.

In the decade since, such interpretations have led to a number of lower federal courts upholding bans on assault weapons in places like Maryland and Washington, D.C., with Heller used as justification.

Those courts have decided there are plenty of other weapons — handguns and regular long guns, for example — available to people for self-protection and that bans on assault weapons therefore don’t rise to a deprivation of Second Amendment rights. Needless to say, the gun lobby and pro-gun activists strongly disagree.

The U.S. Supreme Court itself denied an appeal of Maryland’s ban on the sale assault weapons in 2017, but did so without comment.

‘What’s the scope of the preemption law?’

Jon Vernick, a professor at the Johns Hopkins Bloomberg School of Public Health and a member of the school’s Center for Gun Policy and Research, said there are two primary legal hurdles facing the City of Pittsburgh’s new gun control proposals.

One involves the scope of the Second Amendment, with Heller an all-but-certain touchstone.

Another involves Pennsylvania’s preemption clause, which expressly forbids municipalities from enacting their own gun control measures. Vernick said the latter isn’t necessarily as open-and-shut as it sounds.

“It almost always becomes a legal-research question,” Vernick said of preemption arguments. “You have to determine how Pennsylvania courts in the past have interpreted that [preemption] language and see if they have left any room for localities to act. […] Then the question becomes what’s the scope of the preemption law and would a local law, whether it be a ban on assault weapons or something else, nevertheless be valid because it’s either not in the scope of the preemption law or because it’s permitted.”

Joshua Prince, an attorney representing The Allegheny County Sportsmen’s League and Firearm Owners Against Crime, two groups that have promised to sue if Pittsburgh’s gun control ordinances are adopted, said the matter has already been settled.

Prince points to the Pennsylvania Supreme Court’s 1996 decision in Ortiz v. Commonwealth, in which the court struck down local assault weapon bans in Philadelphia and Pittsburgh, citing state preemption of local firearm regulations.

Naturally, Prince said any lawsuit filed against Pittsburgh’s latest attempt at local firearm restrictions will begin with the argument that they amount to clear-cut violations of Pennsylvania’s clear-cut state preemption law.

“Municipalities are all precluded under the Pennsylvania Constitution from regulating guns in any manner,” Prince added by phone.

And while state preemption has been challenged elsewhere before, sometimes successfully, Duquesne University School of Law Professor and Constitutional Law expert Bruce Ledewitz doesn’t think that’s likely to happen in this case — or in this state.

If Pittsburgh were to somehow manage to overcome the state preemption hurdle, though, Ledewitz said a federal Second Amendment challenge is almost certain to be waiting for them. At that point, the Heller decision would be relevant and highly favorable in the city’s attempt to enact an assault weapons ban, for example.

But Ledewitz questions that legal strategy and says there’s more the city could be doing to subvert or circumvent the state preemption issue by adopting regulations affecting “small aspects of gun rights where Pennsylvania cities are permitted to legislate.”

“I don’t know why the city is not being more creative,” Ledewitz added by phone. “Under state law, municipalities are permitted to regulate the discharge of firearms inside municipal limits, so I’m thinking Pittsburgh officials should, for example, pass a trigger-lock law, which would be challenged under Heller, that says if there’s a young child in your house you have to incapacitate firearms until you need them for self-defense. Then the argument would be permitted under state law. But they seem determined to plow right into state preemption where there’s no real chance of success.”

In short, Ledewitz said the city’s best defense may lie with the Heller decision. But he says that’s going to require getting through the state preemption issue first.

A new development

It’s worth noting that Heller would have no bearing on an argument against state preemption and vice versa.

And while the Heller decision is still being looked to in support of assault weapons bans nationwide, and as the most recent example of the Supreme Court’s view of Second Amendment protections, that may soon change.

Just this week, the high court took up a case involving a lawsuit against a New York City ban on firearms possession beyond trips to firing ranges or shooting clubs.

That means the wiggle room left by the Heller decision could soon be winnowed down by a contemporary Supreme Court with a new and reliable conservative majority.

“Heller was vague and this decision could be much narrower,” Vernick explained.

If anything, experts say the Supreme Court is now poised to expand Second Amendment protections instead of limiting them further. And whereas recent lower court decisions upholding assault weapon bans bode well for Pittsburgh’s proposal, according to Vernick, a new Supreme Court decision could offer new and perhaps conflicting legal precedent on the subject.

“That [New York City] case most directly involves taking handguns or other guns outside the home,” Vernick said. “It doesn’t directly involve assault weapons but would be an opportunity for SCOTUS to change the way lower federal courts judge the constitutionality of any kind of law that affects people’s Second Amendment rights.”

Vernick said a Supreme Court decision in the case isn’t likely until spring or winter of 2020.

In the meantime, Pittsburgh’s gun control push continues, with a public hearing set for this evening and backers on council saying they hope to see the legislation adopted by next month.