At first blush, there wouldn't seem like much new in a Commonwealth Court ruling on Pittsburgh's stolen gun ordinance. In a decision echoing a ruling upheld by the state Supreme Court weeks ago, a three-judge panel tossed out a challenge of the law for a lack of standing.
But this decision, unlike some previous cases, suggests the NRA may have a new gunslinger on its side.
Gun owners detest the city's ordinance, which requires them to report a lost or stolen firearm within 24 hours of discovering its absence. (The legislation is intended to curtail "straw purchases" of guns bought by third parties, who pass the firemarms along to someone barred from owning a gun themselves.) But generally, before you challenge a law, you have to show that you actually stand to be harmed by it. And so far, no one has been charged under the Pittsburgh ordinance, or the Philly law upheld previously. As a result, judges have found that none of the plaintiffs -- who include the NRA and several gun-owners -- have been in a position to complain about it.
The Commonwealth Court's opinion followed that earlier reasoning -- which is no surprise since it issued a very similar ruling on the Philly matter almost exactly a year ago. So once again, we seem to have a weird sort of Mexican standoff -- all the parties are itching to fire, but everybody's gun is loaded with blanks.
But this ruling is notable for a dissenting opinion by Judge P. Kevin Brobson.
Formerly a Pittsburgh-based attorney with Buchanan Ingersoll & Rooney, Brobson was elected to the court last year. So he didn't take part in the earlier deliberations over the Philly bill. And his dissent makes clear that he didn't share the court's logic, either.
Brobson points out that by the standards set out by the court, "the only person who may lodge a pre-enforcement challenge to a criminal ordinance is a person who ... either (a) admits that he or she has already violated the ordinance ... or (b) commits to violating the law.
That leaves gun owners with a "Hobson's choice," he says: "either comply with a law you believe is unlawful or subject yourself to possible criminal prosecution."
I'm no lawyer, but Brobson seems like a deft writer and thinker. For one thing, there's this little zinger:
We must not presume that the citizens of the Commonwealth will blithely choose to violate a law and risk criminal sanctions for the sole purpose of proving the law’s invalidity any more than we should presume that a local government would enact a law, regulation, or ordinance that it has no intent to enforce.
The emphasis there is mine. On the one hand, Brobson is saying that there's no excuse for leaving a bad law on the books -- even if we don't think it will ever be used. But to me, it also sounds like Brobson is slyly suggesting that this particular law may never actually be enforced. Certainly, as we've reported before, Pittsburgh police are taking their sweet time about charging anyone with it. (It may be worth noting that the ordinance became law without Mayor Luke Ravenstahl's signature, which suggests a lack of enthusiasm on the administration's part.)
In any case, Brobson concludes, gun owners "have a direct and immediate interest sufficient to bring this pre-enforcement challenge." And thus the challenge should go forward.
The NRA has endorsed that logic. Which is hardly surprising, since the NRA endorsed Kevin Brobson himself in 2009. The group plans to appeal the three-judge panels' decision to the full Commonwealth Court. The sniping will no doubt continue there. But it seems like this time, the NRA will have some help from a savvy legal sharpshooter.