Nutter in legal wonderland

Philadelphia Mayor Michael Nutter, whose fresh approach seemed like a welcome change from the corruption-riddled administration of John Street, is not off to a great start if his plan to enforce illegal and unconstitutional laws is any indication:

Nutter: Enforce Phila.'s gun laws

The mayor is setting up a legal showdown with the state Supreme Court, which banned such city ordinances.

First of all, the headline is misleading, but more on that later. The report continues:
Mayor Nutter yesterday said he would enforce new city gun-control laws even without state authorization to do so - setting up a possible legal and political showdown between the state and the new mayor.

At the first regular meeting of the new City Council yesterday, Council members Darrell L. Clarke and Donna Reed Miller introduced the same package of gun-control measures that languished last year while the state legislature refused to authorize them.

But these bills have a new wrinkle - they don't call for state-enabling legislation. The previous bills were conditional on companion state laws in recognition of a 1996 Pennsylvania Supreme Court ruling that said cities could not enforce their own gun laws.

It is well settled that Philadelphia does not have the legal authority to enforce gun laws that contravene state law. It is called "preemption." The Philadelphia laws are a legal nullity and unconstitutional. Any Philadelphia police officer who attempts to enforce them could be sued. Moreover, all police officers in Pennsylvania are sworn to uphold state law, so the nonsense that Nutter threatens would only cause absolute chaos for Philadelphia (assuming he follows through).

I love this response by Sebastian at Snowflakes in Hell:

Go ahead Mayor Nutter. Enforce them against me. Please. I could use the money I'll make from the giant lawsuit I promise I'll slap the city with. Pennsylvania needs to reconsider its preemption statue if Mayor Nutter is serious about crossing this Rubicon. Not to weaken it, but to impose penalties on cities and local municipalities who violate it. We have the power to do this in the legislature, and I really hope that City Council does not really want to bring this issue to a head.
And here's Jeff Soyer, who corrects the Inquirer on a point of law:
Once again, it's "punish the law abiding gun owners" rather than the criminals and if that means violating the Pennsylvania Constitution or state law, so be it.

This seems to be a common thread of late where activist mayors around the country violate their states' laws, such as "marrying" same sex couples or passing (in SF) gun bans. Apparently the only laws they want to obey are the ones they pass themselves!

As I say, Jeff is a more thorough legal researcher than the Inquirer. Note that he said "state law."

State preemption of local gun laws was not just a "1996 Pennsylvania Supreme Court ruling" as the Inquirer claims, because the Supreme court simply followed existing state law -- Pennsylvania 18 Pa. Cons. Stat. Ann. § 6120(a) -- a 1994 statute which provides as follows:

§ 6120. Limitation on municipal regulation of firearms and ammunition.

(a) General rule.--No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.

Not that state law matters to Nutter any more than the legal details matter to the Inquirer. The story continues, as if this is just the way things are supposed to be done in our fair city:
"If these bills pass and if I sign them, then I expect to enforce them," Nutter said. "If you believe we can have a safer city by putting these measures in place, I think as good public servants we are compelled to take some type of action in the face of no relief coming from anywhere else."

Clarke said only that the new bills are "part of a legal strategy."

The bills would force owners to immediately report stolen guns; set monthly limits for firearms purchases; require vendors to report ammunition sales; and prohibit gun sales to anyone who is the subject of an order of protection.

Temple University law professor David Kairys, a gun-control advocate, said "that's what our City Council and mayor should be doing - they're dealing with an urgent problem."

Kairys said the city's action could set up a test of a new Supreme Court, now under Chief Justice Ronald Castille, the former Philadelphia district attorney who promised to depoliticize the court.

"If there's really going to be a new day in the Pennsylvania Supreme Court, this would be a fine place to start," Kairys said.

A "test of a new Supreme Court"? To test what? Whether it will throw out a state law specifically preempting local laws because a local law is written to defy the state law intended to preempt it?

On an anti-gun law professor's say-so?

Castille may be a "former Philadelphia district attorney who promised to depoliticize the court" but I think if he goes along with Philadelphia's Alice in Wonderland legal strategy, he'll be doing precisely the opposite.

I'm already disappointed in Mayor Nutter, and he hasn't been mayor for three weeks!

posted by Eric on 01.25.08 at 09:03 PM


The whole situation in the country has a final days of the Roman Empire feel to it.

Ubi est is the word of the day.

M. Simon   ·  January 26, 2008 1:59 AM

Let's imagine that Mayor Nutter succeeds in getting Philly's cops to enforce this ordinance, and is later found by a competent court to have done so against state law, the state constitution, and the Supreme Law of the Land.

What would happen to him?

Would he be ejected from office for having violated his oath? Would he be prosecuted for having broken state and / or federal law? Would he owe damages to the gun owners whose rights he had abridged?

My surmise is that Nutter would suffer none of these penalties, nor any others. He would remain secure in his office until the end of his term.

Politicians, you see, are above the law. We call it "sovereign immunity." Or as the British once liked to put it, "The King can do no wrong."

Arm yourselves, and be ready.

Francis W. Porretto   ·  January 26, 2008 6:48 AM

what a nut.

curly   ·  January 26, 2008 2:39 PM

what a nut, and we are nuts for letting him in office.

curly   ·  January 26, 2008 2:40 PM

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