By Shira Goodman
The Pennsylvania Legislature should be hiding in shame right now.
In the face of rising gun violence, and in the wake of the deadliest hate crime against Jews occurring in this Commonwealth, the Legislature – which claims to hold all the power to act — has not only chosen inaction, but it has also chosen to callously punish those trying to lead.
Instead of working to save lives and reduce violence, the Senate Local Government Committee chose to revive a punitive bill allowing gun groups to sue cities and town across Pennsylvania that choose to enact gun ordinances stronger than existing state law.
The legislators behind this preemption effort are angry that, in the face of inaction by their elected leaders, local officials have decided to at without them to keep their communities safe. They’re particularly angered by the gall of official in Pittsburgh who, in response to a murderous rampage last October at the the Tree of Life synagogue that left 11 people dead, chose to ban assault rifles and high-capacity magazines.
Fomenting this anger is a jealous guarding of Harrisburg’s power – embodied in a legal doctrine called preemption.
The state has preempted local regulation of the lawful possession, transfer and transportation of firearms, requiring that all such regulation come from the state. Preemption is a tool that states wield to enforce uniformity. But in the case of firearms, preemption is just a power grab – because Harrisburg has asserted its power and then flagrantly failed to use it to combat gun violence.
I would argue that when a state preempts a field and takes all the power to regulate for itself, that action carries a concomitant obligation to regulate in that field, to address the problem at hand. In other words, if you claim the power, you have to use it.
Harrisburg has failed to do so.
This leaves municipal leaders in the difficult position of having their residents calling for action but with no ability to reply.
Now, Harrisburg is going even further and trying to weaponize preemption. House and Senate preemption bills little more than an attempt to bully and punish Pennsylvania towns. And in the process, our legal system is being upended.
If these proposals are ever signed into law, the gun lobby will have been given a very valuable gift – a right to sue that exists in no other context.
The bills now before the House and Senate change the laws of standing that govern who can sue in court. Under 250 years of the American legal tradition, only one who has been harmed by a law or action, or who is in imminent danger of suffering such harm, has standing to sue.
These bills completely undermine the concept of standing.
They grant any Pennsylvania who may lawfully own a firearm the right to sue any municipality that enacts its own firearms ordinances, even if the person does not live in that city, has never been there, and has never had the ordinance enforced against him, or indeed, anyone at all.
Further, the bills grant standing to any organization that counts as a member a Pennsylvanian who may lawfully own a firearm.
This, too, is unprecedented. There is no “organizational standing” in our legal system. When organizations bring suit, they do so on behalf of and in concert with named plaintiffs who have actual standing to sue.
Finally, these bills change the way legal fees are awarded. Traditionally, under the “American Rule,” each party to a lawsuit bears its own costs.
There are some types of cases where fees may be shifted and awarded to a prevailing party, but it is not automatic, is governed by specific rules, and is available to both parties. Under these punitive preemption bills, if a plaintiff prevails against a city, the city is liable for that plaintiff’s fees.
If the city prevails, it bears its own costs.
Who benefits from this? The gun lobby lawyers — who even now are soliciting plaintiffs and donations to cover the costs of suing Pennsylvania towns.
This raises several questions Pennsylvanians should ask their representatives and senators: Why give this gift to the gun lobby and its lawyers?
How can you claim to represent the communities in your district when you are erecting a system that will leave them vulnerable to multiple lawsuits from organizations that aren’t even based in Pennsylvania?
And, what are you going to do when the next big lobbying organization wants that kind of special standing?
Pennsylvanians are demanding more from their lawmakers – responsiveness, accountability, action. Punitive preemption is entirely the wrong type of action. If Harrisburg really wants to guard its power over firearms regulation, then it should regulate firearms in PA. Their failure to do so is shameful.
Shira Goodman is the executive director of CeaseFirePA, a Philadelphia-based, gun-control advocacy group. Her work appears occasionally on The Capital-Star’s Commentary Page.