Pennsylvania Supreme Court Weighs Whether Cities Can Pass Gun Safety Laws

Pennsylvanians who have lost a loved one to gun violence are asking the state supreme court to invalidate a law that has blocked cities from adopting or enforcing firearm safety laws since 1974.

Crawford v. Commonwealth is a state constitutional challenge to a preemption law that bars cities from passing gun safety measures like permit requirements and waiting periods. Under the law, only the state may pass laws regulating guns, leaving municipalities with no authority to implement locally tailored firearm ordinances.  

Although more than 40 states have similar laws preempting local gun regulations, this appears to be the first time a city has mounted a state constitutional challenge to one of those laws based on substantive due process. 

The plaintiffs include 10 Philadelphians and Pittsburghers whose family members died from gun violence, the City of Philadelphia, and gun-safety organization CeaseFirePA. They argue that the law has led “to the inevitable deaths and injuries of an unconscionable number of Black and Hispanic residents of [Pennsylvania’s] largest cities.” Gun violence kills 1,544 people a year in Pennsylvania. Black Pennsylvanians are 19 times more likely to die by gun homicide than white people in the state, and Hispanic Pennsylvanians have 5 times the risk. 

 The lawsuit seeks to empower cities to pass gun violence prevention ordinances, such as barring gun purchasers from buying more than one gun per month and requiring a permit for gun purchases. State lawmakers, the plaintiffs claim, have engaged in “unrelenting hand-tying of municipalities,” “stymie[ing] the types of local changes that would save lives.” 

 According to the plaintiffs, the state’s restriction on cities’ ability to enact gun safety measures constitutes a state act “to create or enhance a danger” — namely, gun violence. Plaintiffs contend that this violates their right to substantive due process under Article I, Section 1, of the Pennsylvania Constitution, which protects “certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty.” Moreover, the plaintiffs argue that the law interferes with cities’ constitutional duty to protect residents’ health and safety, as well as their statutory obligation to combat local public health risks.

 In response, the state and other defendants argue that the law is a straightforward exercise of Pennsylvania legislators’ authority to enact statewide polices. “A legislature’s policymaking decision to enact a uniform, generally applicable statute followed by a decision not to repeal that enactment cannot possibly constitute a state-created-danger,” they contend. In other words, a substantive due process violation does not arise just because a statute creates some foreseeable harm. In any event, they say, the Pennsylvania Supreme Court already upheld the constitutionality of the law in 1996 in Ortiz v. Commonwealth. The plaintiffs, however, maintain “that decision addressed a limited challenge on grounds different from those presented here.” 

 During oral argument, several justices expressed concerns about how to draw the line between what was and was not a substantive due process right. They also questioned the justiciability of the issues presented, asking whether this was a policy concern best presented to the Pennsylvania General Assembly rather than a legal concern best decided by a court. The state supreme court’s review comes after a sharply divided intermediate appellate court dismissed the case in a 3–2 decision in October 2022. 

This challenge also comes in the wake of the 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, which changed the framework for evaluating Second Amendment challenges and made it more difficult for governments to pass gun violence prevention measures. As a result, those who challenge gun control laws have an easier time than before, under a new standard that requires the government to “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” 

In the context of Bruen, this lawsuit serves as a reminder that there are still significant state constitutional issues related to gun regulation being addressed within the states. It also illustrates how advocates of gun regulation can come to rely on state law for their legal battles.

The Pennsylvania Supreme Court’s decision in Crawford could impact the future of state constitutional claims regarding gun violence prevention, as well as the balance of power between states and cities in addressing the gun violence epidemic. If successful, it will not only be a victory for the plaintiffs, but also offer a new model for pursuing justice for those living under the threat of gun violence every day across the country. 

Hillary Shah is a student at the University of Pennsylvania Carey Law School and an intern at the Public Interest Law Center, which represents the plaintiffs in this case.