Preemption Statute

Pennsylvania law provides 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.”¹

Interpretation

Section 6120(a) has been interpreted to preempt local ordinances banning assault weapons. In Ortiz v. Commonwealth, the Supreme Court of Pennsylvania struck down local assault weapon bans in Philadelphia and Pittsburgh under what is now subsection 6120(a).² The court found that the legislature had “denied all municipalities the power to regulate the ownership…transfer or possession of firearms.”³ The court stated that the Pennsylvania Constitution “requires that home rule municipalities…not perform any power denied by” the legislature.⁴ The court also noted that firearm regulation is “a matter of concern in all of Pennsylvania,” and the legislature “is the proper forum for the imposition of such regulation.”⁵

Similarly, in Schneck v. Philadelphia, a lower court held that section 6120(a) preempted a city ordinance requiring a license for the acquisition of a firearm within the city.⁶

In Clarke v. House of Representatives, an intermediate appellate court held that section 6120(a) preempted several firearm-related ordinances enacted by the City of Philadelphia in May of 2007.⁷ These ordinances would have:

• Limited handgun purchases to one per month
• Mandated the reporting of lost or stolen firearms
• Required a local license to acquire a firearm or bring a firearm into Philadelphia
• Required annual renewal of this license
• Allowed a firearm to be confiscated from someone posing a risk of harm
• Prohibited the possession or transfer of assault weapons
• Required anyone selling ammunition to report the ammunition and the purchaser to the police department.

Among other things, the City argued that section 6120(a)’s reference to firearms and ammunition “when carried or transported” allows local governments to regulate uses of firearms and ammunition that do not involve carrying or transporting them. The court rejected this argument, relying on Schneck and Ortiz.⁸ The court also rejected the City’s argument that the Ortiz decision should be revisited because of “changing circumstances, particularly the increase in gun violence in Philadelphia.”⁹ This decision was affirmed, without a published opinion, by the Supreme Court of Pennsylvania.¹⁰

In Nat’l Rifle Assn. v. Philadelphia, an intermediate appellate court held that section 6120(a) preempted two firearm-related ordinances adopted by Philadelphia in June 2008.¹¹ More specifically, one ordinance would have banned assault weapons and the second ordinance would have prohibited any person from acting as a “straw purchaser” by purchasing a handgun on behalf of an ineligible person. Despite the City’s argument that both of these ordinances only regulated activity that was already unlawful, the court held that the Supreme Court of Pennsylvania’s decision in Ortiz was controlling.¹² The Supreme Court of Pennsylvania refused to hear the case on appeal, thereby affirming the decision without a written opinion.¹³

On the other hand, a lower court has held that section 6120(a) does not preempt ordinances that regulate firearm possession that is already unlawful. Thus, where plaintiffs attempted to carry firearms into a courthouse in violation of an ordinance that forbids the possession of firearms in any county facility, and where state law already barred the possession of firearms in courthouses, the ordinance was not preempted.¹⁴ Later, in Minich v. County of Jefferson, the court rejected a claim that the county lacked authority to enact the same ordinance.¹⁵ The court held that the county had authority to enact the ordinance pursuant to 16 Pa. Stat. Ann. § 509(c), which allows county commissioners to prescribe fines and penalties for violations of a “public safety” ordinance.¹⁶

Finally, in Gun Range, LLC v. City of Phila., an intermediate appellate court, in an unpublished opinion, held that section 6120(a) does not preempt a municipal zoning ordinance regulating only the location of gun shops and not the manner in which the gun shop conducts its business nor whether gun shops can operate at all within the jurisdictional limits of the municipality.¹⁷

Extreme Preemption

In 2014, Pennsylvania had enacted a law providing a cause of action for individuals as well as membership organizations such as the NRA to enforce section 6120(a).¹⁸ It also allowed a successful plaintiff to recover attorney’s fees and other reasonable expenses.¹⁹ In Leach v. Commonwealth, however, the Supreme Court of Pennsylvania, struck down these provisions after finding that the original bill failed to satisfy the mandate of Article III, Section 3 of the Pennsylvania Constitution that each bill contain only one subject.²⁰

Other Statutory Provisions

Other state laws also restrict the ability of municipalities to enact firearm laws.

Title 53, Pa. Cons. Stat. Ann. § 2962(g) 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.”

Cities in Pennsylvania, however, may regulate the “unnecessary firing and discharge of firearms in or into the highways and other public places.”²¹ Second class cities (those containing a population of between 250,000 and 1,000,000) may also “regulate, prevent and punish the discharge of firearms… [and] prevent and punish the carrying of concealed deadly weapons.”²² Third class cities (those containing a population under 250,000 and which have not elected to become a “city of the second class A”) may “[t]o the extent permitted by Federal and other State law…regulate, prohibit, and prevent the discharge of guns…within the city and … prevent the carrying of concealed deadly weapons.”²³

Title 16, Pa. Stat. Ann. § 6107-C(k) states that second class counties (those having a population between 800,000 and 1,500,000) may not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms.

Title 53, Pa. Stat. Ann. § 56531 states that first class townships (those having a population of at least three hundred inhabitants to the square mile) may regulate, license and fix the time of opening and closing of shooting galleries.

Immunity

For information on statutes that provide shooting ranges and the gun industry with immunity from lawsuits, see our page on Immunity Statutes in Pennsylvania.

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1. Title 18, Pa. Cons. Stat. Ann. § 6120(a).[↩]
2. Ortiz v. Commonwealth, 681 A.2d 152, 155 (Pa. 1996).[↩]
3. Id.[↩]
4. Id.[↩]
5. Id. at 156.[↩]
6. Schneck v. Philadelphia, 383 A.2d 227 (Pa. Commw. Ct. 1978); see also Firearm Owners Against Crime v. Lower Merion Twp., 151 A.3d 1172, 2016 Pa. Commw. LEXIS 545 (holding that section 6120(a) preempted an ordinance prohibiting possession of a firearm in a township park without a special permit; U.S. Law Shield of Pa., LLC v. City of Harrisburg, 2015 Pa. Dist. & Cnty. Dec. LEXIS 21 (Pa. County Ct. 2015) (granting plaintiffs’ preliminary injunction against a city ordinance prohibiting the possession of firearms); Dillon v. City of Erie, 83 A.3d 467, 2014 Pa. Commw. LEXIS 29, 2014 WL 37840 (holding that section 6120(a) preempted an ordinance prohibiting hunting and firearms in the city’s parks).[↩]
7. Clarke v. House of Representatives, 957 A.2d 361 (Pa. Commw. Ct. 2008).[↩]
8. Id. at 364.[↩]
9. Id. at 364-65.[↩]
10. Clarke v. House of Representatives, 980 A.2d 34 (Pa. 2009).[↩]
11. Nat’l Rifle Assn. v. Philadelphia, 977 A.2d 78, 78-83 (Pa. Commw. Ct. 2009).[↩]
12. Id. at 82-83.[↩]
13. NRA v. City of Philadelphia, 606 Pa. 677 (2010).[↩]
14. Minich v. County of Jefferson, 869 A.2d 1141, 1144 (Pa. Commw. Ct. 2005) (“the County’s ordinance does not regulate the lawful possession of firearms. For that reason, section 6120…does not preempt the County’s ordinance”).[↩]
15. Minich v. County of Jefferson, 919 A.2d 356 (Pa. Commw. Ct. 2007).[↩]
16. Id.[↩]
17. 2018 Pa. Commw. Unpub. LEXIS 248, 2018 WL 2090303, *17.[↩]
18. 2013 Pa. HB 80.[↩]
19. Id.[↩]
20. 636 Pa. 81, 95 (2016). The original bill had created not only a civil cause of action to challenge municipal firearms legislation, but also created new offenses relating to the theft of copper and aluminum.[↩]
21. 53 Pa. Stat. Ann. § 3703.[↩]
22. 53 Pa. Stat. Ann. § 23131.[↩]
23. 511 Pa.C.S. § 12423.[↩]