The Heller Gun Decision Week 15--Legal and Political Developments--With a Focus on Pennsylvania

The Pennsylvania Constitution contains an explicit individual right to keep and bear arms clause which state that “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” [Pennsylvania Constitution, Art. 1 § 21] At the same time, Article I, § 25 provides that “To guard against the transgressions of the high powers which we have delegated, we declare that everything in this article [as in Article 1 aka the Pennsylvania Bill of Rights] is excepted out of the general powers of government and shall forever remain inviolate.” The Pennsylvania Supreme Court has repeatedly held that Constitutional rights implicitly – and explicitly because of Section 25 – cannot be abridged save by a constitutional amendment limiting the same. There is no direct democracy in Pennsylvania vis-à-vis initiative or the like.

Having said that, as to gun rights, the Pennsylvania Supreme Court has 2 squish Republicans is not exactly the Montana Supreme Court in terms of individual gun rights. I believe that District of Columbia v. Heller, a recent decision by the Pennsylvania Commonwealth Court on the “preemption issue,” and the fact that the election is 3 weeks away finally forced an agreement.

The NRA touts the fact that HB 1845 contains: (i) an anti-Katrina “Emergency Powers” provision prohibiting any government agency from arbitrarily confiscating firearms during a state of emergency, such as occurred in the wake of Hurricane Katrina which is based on what I refer to as the Vitter-Obama amendment; (ii) clarifying or authorizing lawful carry of a concealed firearm in state parks; (iii) funding for the acclaimed “Don’t Lie For The Other Guy” program administered by the National Shooting Sports Foundation which is aimed at “straw purchasers”; and (iv) permitting system for concealed carry licenses for individuals who are under immediate threat.

What the NRA does not mention but I believe is very important is that HB 1845 contains a number of anti-gun trafficking provisions. Prior to HB 1845, Pennsylvania was a point of transfer [and loans are severely restricted in Pennsylvania] handgun registration state and has been for many years. Many of the Keystone State’s current provisions enacted in 1995 are taken from California. In fact, under Pennsylvania’s A/ROS system I believe that they do a better job on registering handguns in California and one of the goals of SB 327 was to track some of the Pennsylvania statutory provisions.

HB 1845 was designed as a vehicle to deal with handgun violence in Philadelphia which seeped out into the surrounding suburbs. Because of that seepage, Suburban Republicans who already faced a large measure of political pressure because of Rendell’s “battleship presence” in the Philadelphia suburbs which I would compare to the Guliani effect on Long Island or the effect that President Reagan had at the height of his popularity in swing areas - put tremendous pressure on their leadership to pacify the Governor in order to address the gun trafficking issue.

While there were Rendell backed proposals to do a “one gun a month and “reporting lost and stolen provision” that did not make into the final bill, the legislation as negotiated with Governor Rendell achieved in many ways a far tougher and targeted approach to the trafficking issue. The point of registration and related procedures is to assure that the registered owner of a handgun is responsible for it and does not put that gun into another’s hands without assuring that the transaction is subject to background checks and re-registration.

Besides NICS compliance measures vis-à-vis mental health issues, HB 1845 mandates tracing of all seized and found guns by law enforcement. In addition, it deals with the lost and stolen issue in a manner which I believe deals with the issue in a Constitutional manner, addresses obliterated serial numbers, and achieves the same results as a reporting requirement because it puts straw purchasers in a “no win” position. HB 1845 also mandates that the A/ROS form [because Pennsylvania has an automated-computerized instant check system the check is done and only then is the handgun registered] that specifically warn people as to their legal responsibilities in term of transferring guns that they acquire.

Moreover, HB 1845 through several subtle statutory changes to the statute of limitations and other areas turns Pennsylvania as to handguns into most cases [without the negative or unintended effects] a defacto registration at point of possession state vis-à-vis handguns. As noted above, gun loans are essentially banned in Pennsylvania save in very restricted circumstances because of the 1995 legislation.

In my view that assuming that HB 1845 is enforced anyone who legally acquires a handgun in Pennsylvania would be insane to transfer it without following proper back end procedures. The Philadelphia Inquirer carried a story on HB 1845 which noted NRA claims to the contrary who got the most out of the bill. In particular, Kathy McDonald, chief of the legislative unit in the Philadelphia District Attorney's Office - and no relation to the murdered officer – noted the provision that lifts the statute of limitations which turns the Keystone State into a defacto – and intelligent – registration at point of possession state.

Since I mention Pennsylvania, I also wanted to comment about the NRA’s endorsement of Palin-McCain as it affects the Pennsylvania electoral outcome and in general.

First, on the shear hypocrisy level, the NRA endorsement is an all timer. As Richie Feldman noted in a piece, in the past the NRA has demonized McCain for a series of actions. Moreover, if you go by actions and votes, McCain voted for the assault weapon extension in 2004 as part of S. 1805.

Obama – unlike Hilary Clinton – voted for the Vitter-Obama emergency powers amendment. Given Heller, the bogeyman of gun confiscation is over – indeed the Second Amendment Foundation just won its suit via a settlement [with 42 USC 1988 fees] against New Orleans. In so far as to a “new assault weapons” law [and the 1994 law was a prospective making-import ban] the NRA fear that type of law could not pass for two reasons. One, Nancy Pelosi is not going to let it get to that stage. And, two, people forget that the 1994 law passed primarily because of Republicans – most of whom are gone. Indeed, if the NRA thinks assault weapons are a deciding vote, why did it endorse McCain in light of his Aye vote on S. 1805?

I should add that in the Senate Harry Reid is not going to put his members at risk and the type of people who pushed the 1994 law – Republicans and Democrats – are gone. The makeup of Senate Democrats and Republicans is far different today than in 1994. Moreover, McCain’s record on hunting-fishing issues is atrocious. This record has created an Achilles heel on top of the other issues such that once a substantial group of voters felt that Obama would not screw with them on gun issues are focusing on those issues.

The NRA endorsement for McCain is probably internally damaging to it and to McCain. I say that because of demographics. The US electorate [and that of Pennsylvania] is far different than where it was even 12 years ago. Various people have noted major Democratic registration gains in a number of states. The reason for that is who make up the electorate has changed dramatically.

Back in the days of Dukakis and Willie Horton resort to racial fears could be decisive. However, the demographics have clearly shifted around – which even the NRA seems to understand in California at least because some of their biggest go to people – starting with Rod Wright – are not Anglo males.

Anti-Obama ads which are tinged with racism will result in huge backlash. I might add that the NRA has boxed itself in because some of Obama’s biggest elected supporters are NRA endorsed candidates who have vouched for him with gun owners in TV spots and mail and other forms of media. Obama’s financial advantage allows that. Just the other day, Ohio Governor Ted Strickland did that at a rally in Southern Ohio.

Moreover, in a number of statewide [North Carolina Governor’s race] and congressional races the NRA has endorsed – to GOP consternation – a number of Democrats. In fact, the GOP candidate in response has trashed the NRA. Those very same NRA Democrats – starting with Lieutenant Governor Bev Perdue in North Carolina who is running for Governor – are relying on the Obama Turnout Organization to help them. In fact, a number of these NRA supported candidates – Perdue being but one example - were very early Barack endorsements because of their visceral anti-Hilary concerns as a polarizing figure. A lot of people forget but in most of the states that Obama won he was in that State the Democratic Establishment candidate – particularly in the South.

Many should remember the remark by a Brooklyn political boss who when faced with a nervous Assembly candidate who was worried over a lack of visible activity for his Assembly race remarked that the candidate should go to the Staten Island Ferry and see what happens when the ferry comes in terms of sweeping in behind refuse. The boss then said “This year the ferry is Roosevelt and you’re the garbage.” The point is that most of these new voters are Democrats who don’t know who is running for the State Legislature or whatever. In almost all cases they will be given a slate card [the version of the BAD card] with the Obama Team on it. These down ballot candidates want to be on the Obama Team Slate.

Because the NRA sometimes cannot help itself and goes into the racial area, here is a warning. I saw a reference on some wacko website as to Tiers of Drivers licenses. If the NRA wants to make Real-ID an issue, make my day and explain it away. If Obama was for Tier 2, so was McCain – indeed the bill passed the US Senate 100-0. [Also a number of people at Fox News have their own issues –starting with Roger Ailes.]

I should make one particular and additional reference to minority voters. There is a lot of talk of President Bush winning 40 percent of the Hispanic vote in 2004; Obama currently has a more than 2-to-1 edge with Hispanic voters over McCain – primarily because of the company he keeps – and their percentage of the electorate keeps on growing.

In addition to Hispanic voters I should add that the Republicans long term need to be very-very wary of what they do – in terms of two groups: African Americans and Jews. In 2004, Bush did very well with African Americans and Jews. For a variety of reasons, there has always been a healthy African American Republican vote in Ohio, Pennsylvania, Tennessee, and Virginia. In Ohio, Jews make up a substantial GOP vote. In fact, the reason that Virginia United States Senator John Warner pushed so hard to dump Trent Lott was his African-American supporters demanded he do so.

John Warner stated at a press conference that he held his Senate seat because of African Americans. I would argue the reason that Bush was re-elected in 2004 is that Ohio African Americans [and Jews] delivered the election to him. The way Republicans act will affect their long term survival in Ohio.

Globally, McCain and the Republicans have to worry about another person going nuclear because of the NRA and that is New York City Mayor – and Billionaire - Mike Bloomberg. Bloomie and the NRA hate each other. So far Bloomie has been mum but he has the biggest 527 of them all. McCain has a number of personal issues as to a gaming problem. This has been noted by Michael Kinsley, Ross Perot, Crew [http://www.citizensforethics.org/node/34678] and others. Bloomberg may have no compunction about doing a 527 on this. I should add that the NRA is a New York Non-Profit Corporation regulated by the NY Attorney General. While McCain likes NY Attorney General Andrew Cuomo, Cuomo and the NRA have “issues”.

I wanted to make one last point about Pennsylvania. Professor Terry Madonna at Franklin & Marshall College has written about the changing demography of Pennsylvania and the makeup of its electorate. Pennsylvania is not – and never was – this state where Caseycrats [and Senator Bob Casey is very close friends with Obama] dominated. Casey Senior lost two statewide races before he was elected Governor and when he was elected Governor the third time it was through a voter suppression strategy because he was hemorrhaging Democratic votes in South East Pennsylvania.

Rather, Republicans survived on the mainline in the Philly suburbs and they survived by nominating moderate [pro choice-mildly pro gun control] Republicans who appealed to the Mainline, Jews and African Americans. This notion of a Western Pennsylvania steelworker being the swing voter was not per se true. Ed Rendell won the Governorship by beating Casey in the primary and a Caseycrat type Republican in the general because Rendell ran as a Democratic version of Bill Scranton and Tom Ridge. In fact, I believe that McCain lost Pennsylvania when he snubbed Ridge and went for Palin. Had McCain chosen Ridge or Governor Jodi Rell of Connecticut this would be a different type of campaign in the Keystone State.

I should add that the Democratic registration edge in Pennsylvania increased by 500,000 voters and the key swing electorate in Pennsylvania is now in the Philadelphia suburbs made up of yuppies. Terry believes that Pennsylvania – absent the Republicans nominating a Tom Ridge for President – is now a deep Blue state. I would add that being associated with the NRA in the Philadelphia suburbs is not a good idea. That is probably why the suburban Republicans [and the NRA] caved appropriately to Governor Rendell on HB 1845 – they had no choice.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.