Is Lost & Stolen Legislation Legal?

Introduction

All but two US States have some form of prohibition on local municipalities regulating firearms, so in most such states, ordinances relating to guns passed by towns and cities are illegal and cannot carry force of law. Most state legislatures, as well as the US Congress, have already passed laws criminalizing trafficking in firearms to people convicted of certain crimes. Lost and Stolen laws not only violate most state laws preempting local firearm regulation, but are redundant, and do not fit with our sense of justice and fairness.

Lost and Stolen Ordinances are Illegal

All but two US States, Illinois and Hawaii, either completely prohibit or largely prohibit local municipalities from passing ordinances on the topic of firearms. Because the Lost and Stolen controversy is most heated in the Commonwealth of Pennsylvania, this section will focus largely on Pennsylvania. Pennsylvania prohibits local municipalities from regulating firearms in 18 Pa.C.S. § 6120:

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.

Proponents of Lost and Stolen claim that this law does not interfere with any of these topics which are preempted, but the fact is Pennsylvania courts have repeatedly held that all regulation of firearms are preempted, and are the exclusive province of the Pennsylvania General Assembly. There is no area where a local municipality may pass laws on the topic of firearms, as was ruled in the Pennsylvania Supreme Court decisions Schneck v. City of Philadelphia, 383 A.2d 227 (Pa. Cmwlth. 1978) and later in Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152 (1996). The Pennsylvania Supreme Court ruled in Scneck that the preemption statute “clearly preempts local governments from regulating the lawful ownership, possession and transportation of firearms.” It later strengthened and reaffirmed this in Ortiz, “Because the ownership of firearms is constitutionally protected, its regulation is a matter of statewide concern … and the General Assembly, not city councils, is the proper forum for the imposition of such regulation.” This ruling has been upheld by lower courts as recently as June, 2009 in the case of NRA v. City of Philadelphia, with the Superior Court saying “we believe, however, that the crystal clear holding of our Supreme Court in Ortiz, that, ‘the General Assembly has [through enactment of § 6120(a)] denied all municipalities the power to regulate the ownership, possession, transfer or [transportation] of firearms,’”

It is hard to escape the strong language of our courts, indicating that these ordinances are illegal, but the Commonwealth’s highest law enforcement authority, the State Attorney General, also agrees with this, saying

In our view, the existing body of law, and its consistent application of the principles of preemption, at very minimum, counsels great caution in dealing with locally-enacted ordinances which affect firearm use, ownership, possession and transportation. Given what the courts have said, we believe it would be appropriate to treat such enactments as invalid.

Given that both our Supreme Court, and our elected Chief Law Enforcement officer in Pennsylvania agree on this matter, it’s hard to fathom how it can be concluded that Lost and Stolen is a lawful exercise of local governmental powers.

Lost and Stolen Ordinances Expose Local Governments to Costly Lawsuits

At least two of municipalities in Pennsylvania have already had to defend themselves in legal battles over their authority to pass Lost and Stolen ordinances. In both cases, the plaintiffs in the cases were dismissed for lack of standing and ripeness, meaning that because no one had yet to be prosecuted under these ordinances, the cities couldn’t yet be sued. Because none of the municipalities who have passed Lost and Stolen have prosecuted anyone, no court in Pennsylvania has yet heard an argument on the legality of these ordinances, nor upheld them as legal. Municipalities that pass these ordinances risk costly legal expenses trying to defend them in court, and could potentially create legal liabilities if they attempt to enforce them. This was apparent to Philadelphia District Attorney Lynne Abraham, who testified before City Council she would not uphold these ordinances, stating, “I know that the ordinances are invalid and unenforceable according to the Supreme Court of Pennsylvania.”

Lost and Stolen Laws Do Not Fit Within Our Sense of Justice and Fairness

Straw purchasing is a serious crime in many states, as well as a federal felony, with penalties ranging up to 5 years in jail and hundreds of thousands of dollars in fines. Proponents of the Lost and Stolen laws claim that many criminals claim that their firearms were lost or stolen upon being confronted by law enforcement who have recovered their firearm from a crime scene. They claim these laws are necessary so that law enforcement may prosecute individuals who make this claim as if they were straw purchasers. Even if some people who claim to have their firearms lost or stolen actually transferred it illegally, it’s reasonable to assume that many will be people who were honest victims of crime, and were either unaware of the legal requirement, or unable to report it within the statutory period. Is it fair to then criminally prosecute people based on the mere suspicion that they are being untruthful? Doesn’t that put the burden on the victim to prove his innocence, rather than on the state to prove his or her guilt beyond a reasonable doubt?

There is little doubt that most gun owners confronted with a stolen or lost gun will file a police report, but that doesn’t mean we should criminalize not doing so, and risk victimizing our citizens twice — once when their property was stolen, and again from the state treating them as a criminal. Straw purchasing is a serious crime, and because of that, the state should have to meet its burden of proof. We ought not accept lowering that burden, and risk sweeping up the innocent along with the guilty. That should offend most American’s sense of fairness and justice.