Protesters gather at the state Capitol in Harrisburg on Monday, April 20, 2020 to protest the state’s actions to contain COVID-19 (Capital-Star photo).
As Pennsylvanians have taken to the Capitol steps in recent months to protest their government, some decided to take a shotgun or assault rifle along for the ride.
But many of those demonstrators may have been breaking a rarely enforced state law that bans openly carrying firearms during an official disaster declaration.
That potential collision of the right to bear arms and the state’s police power was eliminated by a bill that passed the state House in late June.
Legal observers say the law, as written, is on solid constitutional ground, but their opponents strenuously disagree.
Gov. Tom Wolf has declared two states of emergencies in the past months — the ongoing statewide COVID-19 emergency declaration, as well as a temporary declaration because of Black Lives Matter protests in some of the Commonwealth’s cities, such as Philadelphia and Pittsburgh.
Under Pennsylvania’s Uniform Firearms Act, during such an emergency, “no person shall carry a firearm upon the public streets or upon any public property” during a state of emergency.
There are two exceptions, one for an individual is “actively engaged in a defense of that person’s life or property from peril or threat” or if they have a firearm license, such as a concealed carry permit.
All but two of the House’s 109 Republicans, and 21 of 93 Democrats, supported it.
“Unfortunately, in the last few months, we’ve seen how easy it is for one person to choose to declare a state of emergency,” Dowling said in a statement. He added that it’s critical gun rights “remain in place, even if the governor announces an emergency declaration.”
The bill also makes one other related change. Under the state’s emergency code, the governor can “suspend or limit the sale, dispensing or transportation of alcoholic beverages, firearms, explosives and combustibles” under their emergency declaration. Dowling’s bill would take away the ability to regulate firearm sales.
In an email, Joshua Prince, a Pennsylvania-based firearms attorney, said that the law unconstitutionally delegates the regulation of an individual right to the executive and judicial branches, instead of keeping the authority within the Legislature.
He also pointed out that pandemic-inspired office closures, in such places as Philadelphia, have delayed processing the very permits that would let a citizen openly carry during the emergency.
“Those individuals are left with no recourse and are being stripped of their constitutional rights,” Prince said in an email.
If someone breaks the rule, state law allows for your firearm to be temporarily confiscated.
The state has taken a soft touch to potential violations. Neither Prince nor the state police could provide an example of anyone who had run afoul of the provision.
“The governor worked with Pennsylvania State Police and local law enforcement to ensure that the opioid and COVID-19-related disaster declarations did not affect citizens’ firearms rights,” tate Police spokesperson Ryan Tarkowski said in an email.
The commonwealth also has extended the expiration dates for concealed carry permits holders who may have come due amid the pandemic, Tarkowski said.
A similar proposal to Dowling’s has been around since at least 2018. Former state senator and GOP gubernatorial candidate Scott Wagner made political hay of the law when Wolf used the state emergency code to fight the opioid abuse epidemic.
At the time, the Wolf administration accused Wagner of election year grandstanding. Two years later, the administration continues to oppose the bill.
“The current disaster declarations in place are meant to help the administration fight the public health crises at hand and have no impact on citizens and their firearm rights,” Wolf spokesperson Lyndsay Kensinger said in an email.
Violating the law would result, if prosecuted to the fullest extent of the law, in a first degree misdemeanor. Those found guilty could be forced to pay a fine of between $1,500 to $10,000 and serve up to five years in jail under state law.
If someone served more than a year in prison, Prince pointed out, that individual would not be allowed to legally own a gun again, under federal law.
Prince added he could not envision a scenario where the law might prove useful to authorities.
Other attorneys and legal observers interviewed by the Capital-Star mostly disagreed with Prince’s absolutist take.
They pointed to other circumstances when there might be a need to temporarily restrict gun rights, even a little bit, whether a hostage situation at the Capitol or violent riots in the street in Philadelphia.
“This bill seemingly seeks to stop a problem that does not seem to exist, and almost certainly will not become law because of the governor’s opposition,” said Steve Ross, a law professor at Penn State University.
Currently, gun stores can operate in Pennsylvania by appointment. At least five states, including neighboring New York, shut them down altogether during the pandemic, according to The Trace.
Earlier in the pandemic, Wolf had taken a similar approach. His original list of “life-sustaining businesses” did not include firearm dealers.
But Prince and others filed suit against the policy. In late March, the state Supreme Court turned down an appeal to hear the case immediately, instead forcing it to trudge through the state’s appellate courts.
But that was by a slim 4-3 decision. Writing for the minority, Democratic Justice David Wecht said that the state should provide a way for gun buyers to safely purchase firearms while following public health restrictions.
This would avoid “an impermissible intrusion upon a fundamental constitutional right,” Wecht wrote.
Wolf seemed to take the hint. He quietly reopened gun stores on March 24 in response to the court’s suggestion.
Bruce Ledewitz, a law professor at Duquesne University, said that the move shows how Wolf has scrupulously avoided a final showdown to his executive reach.
“If you’re going to allow sales in grocery stores, you can’t deny a sale that is [a] constitutional right,” Ledewitz, also a Capital-Star opinion contributor, said.
Faced with a case where the constitution might trump his emergency powers, Wolf relented to keep the power intact, if limited.
Without the law, Ledewitz said, the administration might not have had the legal authority to make sure that gun stores follow social distancing and mask requirements at all.
But as for the bill itself, like Penn State’s Ross, Ledewitz thought it was more about politicking than balancing public safety and individual rights during uncertain times.
“Republicans have had it with the approach to the virus, and this is just a way of registering their concerns,” Ledewitz said. “[Wolf] hasn’t denied sales of guns. Nobody can say what he is doing at this point is a violation of the rights to bear arms.”
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