Some say gun-suit loss could be win

The effort by 2 Council members is said to be a long shot in court but could spur changes.

Posted: July 12, 2007

A lawsuit filed yesterday by City Council members, seeking to override a state law preventing local gun regulations, has little chance of succeeding in court but could help to rally support for a broader gun-control effort in Harrisburg, observers said yesterday.

Council members Darrell L. Clarke and Donna Reed Miller sued the state House and Senate, asking Common Pleas Court to allow seven city gun-control ordinances to be implemented without approval by the legislature, as currently required by law.

"We can no longer continue to have vigils, we can no longer continue to have task forces that go nowhere, we can no longer continue to have marches that are essentially a march to nowhere," said Clarke, who along with Reed Miller sponsored the seven measures, including limits on monthly gun purchases, that were passed in May.

They are treading on ground where their predecessors failed - most notably in a 1996 state Supreme Court decision that turned back Philadelphia's attempt to regulate assault weapons, and a 1999 attempt to hold gun manufacturers accountable for the city's violence epidemic.

The lawsuit takes the bold - and not typically successful - tack of asking the Supreme Court to reverse the 1996 decision upholding the legislature's 1994 law specifically forbidding municipalities from regulating guns.

"That's not an easy thing to do," said the Council members' attorney, George Bochetto, who filed the case along with lawyer George Gossett Jr.

Bruce Ledewitz, professor of constitutional law at Duquesne University, said the case could very well be dismissed, and he doubted that the Supreme Court would even consider an appeal.

"They can't do what the General Assembly denies them the power to do," Ledewitz said.

David Kairys, a professor of constitutional law at Temple and a gun-control advocate, also said the chances of the lawsuit prevailing are slim, unless the Council members can demonstrate a public-health emergency in Philadelphia as a result of the lack of gun restrictions.

"I can't say the odds are in their favor," Kairys said.

But if the Council members can show the court new evidence, such as New York City's progress against crime over the last decade with its own, stricter gun laws, there may be a chance, Kairys said.

Regardless, the suit can have an "organizing effect," Ledewitz said. Clarke and Reed Miller, if they are able to put on evidence that gun restrictions can reduce crime, can be successful.

"Sometimes you can win a lawsuit by losing," Ledewitz said.

Clarke said he did not plan to lose.

In the state House and Senate, NRA support comes from both Democrats and Republicans. House Majority Leader Bill DeWeese (D., Greene) predicted that the legislature would act on any victory in court by the Council members that was perceived by legislators to go against the Second Amendment.

"I'm certain that there would be a swift reaction," DeWeese said.

Mayor Street has supported any way to keep the heat on in Harrisburg, where members of the Legislative Black Caucus have been meeting with representatives of the National Rifle Association in Harrisburg.

Those meetings produced two bills that were introduced and received preliminary support from the House - a small but meaningful step forward, said a spokeswoman for State Rep. Dwight Evans (D., Phila.), who convened a special session on guns in September.

"Certainly these two pieces of legislation are a start," said Evans' aide, Johnna Pro. "This issue is now on the front burner, and it will stay there."

DeWeese said yesterday that the NRA and the Black Caucus had scheduled meetings throughout the summer in search of compromise legislation.


Contact staff writer Jeff Shields at 215-854-4565 or jshields@phillynews.com.

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