Pittsburgh has shelved its assault weapons ban (sort of)

Amendments to the city’s gun control proposals steer away from an outright ban on “assault weapons” and, lawmakers hope, to firmer legal standing.

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

Amendments to a contentious package of local-level gun control proposals, the same inspired by October’s mass shooting at Tree of Life synagogue, were formally proposed before Pittsburgh City Council today and include strong language directed at state officials, more careful caveats and what one legal expert calls a “significant concession.”

Passage of the updated bills could come, at the earliest, on April 2. The amendments were introduced today for the first time and could be put up for a preliminary vote next Wednesday, with a final vote possible the following Tuesday. Mayor Bill Peduto has pledged his support.

The amendments being introduced today are the result of extensive retooling initiated soon after the proposals were first introduced in December, just weeks after 11 were killed and six others wounded in a mass shooting at the Tree of Life synagogue in Squirrel Hill.

But where the original proposals included an outright ban on “assault weapons” and specific models of semi-automatic firearms, including the AR-15 used by alleged Tree of Life gunman Robert Bowers, the amendments proposed today favor milder restrictions on their use.

A total city-wide ban on “assault weapons” is still referenced in the amendments, but with the disclaimer that it would only be imposed if and when the state of Pennsylvania changes its laws to allow such regulation by municipalities — a key distinction. (The same now holds true for a proposed city-wide ban on high-capacity magazines.)

Councilman Corey O’Connor, a primary sponsor of the legislation, told The Incline, “I don’t think it’s watered down. I think it’s actually being very creative in looking at different angles that cities across the state have not tried before.”

Read more: Here’s how Pittsburgh is amending its controversial gun control push

Here’s why.

While state law preempts and prohibits Pennsylvania municipalities from regulating the ownership, possession, transfer, and transportation of firearms, Pittsburgh legislators argue this legislation is trying to do something else entirely: simply regulate their use.

“The City Council has the authority to legislate regarding the use of firearms, as distinguished from their ownership, possession, transfer, or transportation, in order to protect members of the public,” a copy of the amendments provided to The Incline reads. But is that accurate?

Expert opinion 

Duquesne University School of Law Professor and Constitutional Law expert Bruce Ledewitz calls this change a “significant concession” but said the city is absolutely within its rights to regulate the discharge of firearms within city limits. But Ledewitz said the discharge of firearms is already well-regulated and that Pittsburgh’s amended proposals cover little new ground as a result.

“Anytime you discharge a firearm in unsafe conditions in a city, it’s already a pretty serious crime, so I doubt this is anything more than symbolic in that regard,” Ledewitz explained.

He added: “The parts they can regulate are already covered, and the parts that aren’t covered they can’t regulate. That doesn’t mean it’s wrong to do it. We have duplicative legislation all the time because people want to make a statement and, in this case, make a statement about guns. (…) But I don’t think it will have any effect because it’s largely duplicative. We don’t need a city ordinance when someone threatens me with a loaded gun.”

O’Connor sees it differently, and said the amended proposals would cover new ground in prohibiting the loading of “assault weapons” in public spaces, for example. Whether that butts up against existing open carry and concealed carry laws remains to be seen.

Specifically, the amended bills would ban the discharging or attempted discharging of an assault weapon in public spaces but also the loading of an assault weapon with ammunition in public, the brandishing of an assault weapon, the displaying of a loaded assault weapon, the pointing of an assault weapon at any person, and the employing of an assault weapon “for any purpose prohibited by the laws of Pennsylvania or of the United States.” (The ban applies in public places and not private homes, residences or any “duly established site for the sale or transfer of firearms or for firearm training, practice or competition.”)

Potential penalties spelled out in the updated bills include a fine of $1,000 and costs for each offense, with the potential for 90 days imprisonment if those fines aren’t paid. Each day of a continuing violation or a failure to comply would constitute a separate and distinct offense, the legislation warns.

Attorney George Cass of Fox Chapel (at left) gets into a heated conversation with gun supporter Pete, who refused to provide his last name of Washington, Pa. area, asking Pete to "just think about humanity" during the gun rally held at Pittsburgh's City-Council Building.

Attorney George Cass of Fox Chapel (at left) gets into a heated conversation with gun supporter Pete, who refused to provide his last name of Washington, Pa. area, asking Pete to "just think about humanity" during the gun rally held at Pittsburgh's City-Council Building.

Erica Dietz / For The Incline

Legal foes

The amendments haven’t swayed opponents, though, and councilors, in candid conversations, said they had little to no expectation that they would.

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 amendments don’t change their position or their plans.

“We will file an action for any type of regulation or ordinance that is passed by the City of Pittsburgh in this case,” Prince said Wednesday.

And while Prince pointed frequently in recent months to the state’s preemption law in advocating against Pittsburgh’s proposed outright ban on assault weapons, he believes the city is still without legal standing to enact restrictions on their use.

“Numerous cases have held that municipalities may not regulate in duplication with state law,” he said. “And in a recent case I litigated, Firearms Owners Against Crime vs. Lower Merion Township, it was found that municipalities may not regulate the discharge of firearms.”

Prince also pointed to a ’90s-era consent decree between the city and The Allegheny County Sportsmen’s League in which he said the city agreed “that it would not regulate firearms and ammunition.” According to Prince, the decree followed an attempted ban on assault weapons in Pittsburgh in the early 1990s, one that was ultimately quashed by the Pennsylvania General Assembly in 1994, which responded by amending the Uniform Firearms Act to explicitly prohibit local control.

But city officials believe they’ve found a way around that prohibition now, at least in terms of restricting the use and discharging of certain weapons.

The amended bills contend that as a Second Class City, Pittsburgh has the power under state law and the City’s Home Rule Charter to “regulate, prevent and punish the discharge of firearms, rockets, powder, fireworks, or any other dangerous, combustible material.”

Like the state’s preemption law, Pennsylvania’s law on Home Rule Charters clearly states that a municipality “shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms.” But it doesn’t directly address regulation of use. It’s a legal loophole — or opening — that city officials hope could protect this legislation in the face of a legal challenge while also empowering other municipalities to follow suit.

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

Obviously, enforcement of a ban on use would be more difficult — and arguably less of a deterrent — than that of an outright ban. And it remains to be seen exactly what the former would look like.

Council member Erika Strassburger, Gov. Tom Wolf, and Mayor Bill Peduto arrive at the unveiling of Pittsburgh's local-level gun-control proposals in December, 2018.

Council member Erika Strassburger, Gov. Tom Wolf, and Mayor Bill Peduto arrive at the unveiling of Pittsburgh's local-level gun control proposals in December, 2018.

Gov. Tom Wolf / Flickr

Other amendments 

Other changes to the bills include new language that would penalize gun owners whose firearms fall into the hands of children and clarifications around earlier language with potential implications for concealed and open carrying of firearms within city limits. On the latter point, O’Connor has said the amendments sought to make clear that this legislation was in no way attempting to supersede or circumvent existing state law on that subject.

Additionally, the legislation still includes a measure that would allow the courts to temporarily confiscate firearms from a person deemed an “extreme risk,” but now with extensive clarifications on who can petition the courts for such an order and under what circumstances. Extreme Risk Protection Orders allow for court-sanctioned confiscation of firearms from a person deemed an “extreme risk” for gun violence, both to others and themselves. (Prince said the potential for legal challenges exists here as well.)

The amendment process also sought to address related concerns from mental health professionals who believed the original wording of the bills could reinforce dangerous and ultimately erroneous stigmas around mental health issues and gun violence.

“We’ve listened to a lot of different people over the last several months,” Council member Erika Strassburger said in announcing the amendments today, referring both to public comment solicited by council, expert testimony and more.

“And we’ve responded to what we think the law allows us to do relative to firearms,” Strassburger added. “It’s important to act, but it’s also important to act responsibly.”

Elsewhere, the amended bills offer careful caveats and constitutional considerations, repeatedly stressing that the legislation is not intended to “restrict a person’s ability to use a lawfully possessed firearm for immediate and otherwise lawful protection of a person’s or another person’s person or property or for lawful hunting purposes.”

Backers of the bills say they believe the measures have majority support on council and are likely to pass. If they do, it remains to be seen if the city’s newly staked legal position around restrictions on use will hold water.

Opponents are certain it won’t. Supporters, meanwhile, say city officials have every right to try and do what they can in the face of significant hurdles erected by the state.

“The City Council hereby calls upon and petitions the Pennsylvania General Assembly either to protect all Pennsylvanians by prohibiting assault weapons, or to allow the elected representatives of Pittsburgh and other municipalities to honor their own constituents’ justified demands for protection,” the amended legislation reads.