Pennsylvania Representative Leslie Acosta
THE PROPOSED BILLS
A Pennsylvania lawmaker has introduced a series of Bills, which if passed would substantially reduce Pennsylvanians access to lawfully owned firearms for self-defense. Rep. Leslie Acosta (D-Philadelphia) has introduced the series of Bills in furtherance of her pledge to “fight for stronger gun control laws.” Acosta was sworn in during January of 2015 as the first Latina in State history to be elected to the general assembly. Unfortunately for her quest and for Law Abiding Pennsylvania Gun Owners, this quest for stronger gun laws has culminated in a series of bills that bear remarkable similarities to some of the gun laws the Supreme Court found overly restrictive and unconstitutional in both District of Columbia v. Heller, and McDonald v. Chicago.
House Bill 1963, the first in a series of Bills introduced by Acosta would require owners of lawful firearms to place their firearms in a locked container, or use trigger, chamber, or cable lock when the firearm is not under their direct control and a minor is in the home. In the event that the firearm is unloaded and taken by a minor, the Bill imposes a penalty of a summary offense. However, if a minor gains possession of the firearm, and it is loaded, the Bill proposes a penalty of a third degree misdemeanor, punishable by up to one year in jail, and a fine of up to $2000. Lastly in the event that a minor takes possession of an unsecured and loaded firearm, and uses it to inflict death or serious bodily injury on any other person, the firearm owner could potentially be charged with a felony, which would disqualify them from even owning firearms in the future.
To accompany this Acosta has introduced House Bill 1962 which would mandate the same responsibilities for gun owners, and the same penalties for disobedience when the owner is living with violent criminals, or when living with anyone prohibited from owning a firearm.
Expanding this gun control plan even further, Acosta has introduced House Bill 1964 which would require securing the firearm in this manner anytime the weapon was not in the owner or possessors direct control, or in such close proximity to the person in control that they would reasonably believe that another person would be unable to take possession of the weapon. House Bill 1964 imposes the same penalties as House Bill 1962, and House Bill 1963, but would expand penalties to include possession of the firearm gained by anyone other than the owner, or person who was supposed to be in possession of the weapon, as opposed to just penalizing possession by a minor or person not allowed to possess a firearm. The final Bill that Acosta has introduced would mandate that gun dealers include a lock compatible with any firearms they sell.
Beyond the proposed House Bills introduced by Acosta, residents of Philadelphia are in the unfortunate position of facing similar legislation at the city level. A measure called FILE # 160331 proposed in April by City Council President Darrell Clarke parallels the proposed Bills introduced by Acosta, in requiring weapons stored in homes with a minor to be kept unloaded, and locked inside a container, with ammunition further stored in another container. Violators would face the potential for a $2000 fine, and up to a month in jail.
City Council President Darrell Clarke
LEGAL ANALYSIS AND PRACTICAL REALITIES
Practically speaking these Bills and measures pose serious obstacles and potentially can lead to serious consequences for law abiding gun owners. House Bill 1964 criminalizes anyone who has a firearm who lets it far enough out of their possession that it would be reasonable to believe another person could access it. What does this mean for people who carry firearms on a daily basis? Can an individual set their daily carry firearm down on the bathroom sink when getting in the shower? The answer to this would be up to the courts, but it is possible that such an action could be penalized as a third degree misdemeanor, leading to jail time, simply for setting a loaded firearm down in your own home! Furthermore, House Bill 1963, like FILE # 160331, would make it a crime for firearms to be stored in any way that would allow a minor to take possession of the weapon unlawfully. Unfortunately storing a weapon such that it cannot be accessed unlawfully by a minor, likely means that it would also be inaccessible to the minor for a lawful purpose, such as self-defense by a minor who is home alone, in violation of House Bill 1963, and for Philadelphia residents FILE #160331. When you stop to think about this, it means that you cannot leave your 17-year-old at home with a firearm accessible to them, because if they were to access it unlawfully, you could be charged. How many individuals have lawfully purchased firearms with one of their primary motives being defense of their family should the need arise? For all practical purposes these bills and measures would make preparing to respond in such a way to an emergency threat illegal. How about sleeping with a gun on the bedside table? Is that a crime? Under House Bill 1964- the answer may be yes.
Fortunately from the perspective Pennsylvania law abiding gun owners, in the past the Supreme Court of the United States has looked at similar laws and found them unconstitutional. In District of Columbia v. Heller, 554 U.S. 570 (2008), the court examined and declared unconstitutional a law that required firearms in the home to be kept unloaded and disassembled, or bound by a trigger lock. Heller taught us many important lessons on the 2nd Amendment, which McDonald v. Chicago, 561 U.S. 742 (2010), then extended beyond the District of Columbia and to the individual States through the 14th Amendment. The SCOTUS held that we have an individual right to keep and bear arms, but that the right is not unlimited. In examining the language of the Constitution, the Court held that the “well-regulated militia” was a mere prefatory clause, or a clause setting out a purpose, but that it did not modify or limit the right granted in the second part of the 2nd Amendment. The second part of the 2nd Amendment discusses the “right to keep and bear arms” which the Court held applied to weapons kept for self-defense, including handguns. Weapons kept for self-defense are of little use if they are to be kept in a form not readily accessible unless carried on one’s person, which many would find inconvenient. Many people wish to keep a weapon the home hidden, but unlocked, and ready for action should the need arise.
In addition to the federal 2nd Amendment protection, Pennsylvanians are further protected by Article 1 Section 21 of the PA Constitution which state that “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” Arguably, the trio of proposed laws by Acosta would be unconstitutional as a violation of Article 1 Section 21 of the PA Constitution. Section 21 clearly establishes that the right to self-defense and that right is an individual right.
Paired with the Constitutional protections, Pennsylvania has a preemption statute on the books, codified at 18 Pa.C.S. § 6120. This preemption statute would seemingly apply to invalidate proposed File # 160331, and essentially says that any laws relating to lawful ownership or possession of firearms or ammunition must originate at the State level. While this language may seem clear, it is always possible for the Courts to misconstrue it or limit it. In fact, several cities, including Philadelphia, Pittsburgh, and Harrisburg have made their own gun laws, with varying levels of success. Some of these illegal laws have already been beaten in the courts under Pennsylvania’s preemption law (see US Law Shield et al. v. City of Harrisburg et al.,). Unfortunately, when illegal laws are passed, it may be necessary to go through the lengthy process of suing to right a wrong by a stubborn local government and have the difficult issue of standing.
While these proposed Bills may not eliminate the right to have firearms in the home ready for self-defense, thereby circumventing the prohibitions struck down in Heller and McDonald, they do mandate that the firearms be kept in control of the person lawfully possessing them (or have them locked up). This essentially creates a ban on shotguns, rifles or other weapons that people would wish to keep loaded and readily accessible in case of emergency, but that are too big to carry all around the house.
While these laws if enacted may be struck down as unconstitutional or against pre-emption in the case of the Philadelphia ordinance, with the Supreme Court of the United States in flux, and Justice Scalia, author of the majority decision in Heller deceased, counting on the court to strike these laws down may be a gamble gun owners don’t want to take.
Now is the time to vote and let your representatives know you don’t want these potentially unconstitutional Bills and Measures passed in the first place!
[Hat tip to Gilbert Ambler who wrote this post. Edited by Justin McShane]