The Philadelphia skyline at night. (Photo by Peter Hall/Capital-Star)
A Philadelphia man’s conviction for openly carrying a gun has led Pennsylvania’s Supreme Court to reexamine a state law that treats firearm owners in the state’s largest city differently than in other parts of the commonwealth.
To carry a gun in Philadelphia, a person must have a concealed carry license, regardless of whether they carry it openly or not. That’s not a requirement in the state’s 66 other counties, where it’s legal to carry a gun without a permit as long as it’s plainly visible.
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Lawyers for Zaire Livingston have argued the state Uniform Firearms Act’s exception for Philadelphia violates the equal protection provisions of the state and federal constitutions.
Livingstone was arrested after Philadelphia police saw him selling drugs to another person in a dark alley. He was charged with drug possession and possession with intent to distribute. He was also charged with violating the Uniform Firearms Act because he had a handgun tucked in his waistband. He pleaded guilty to drug possession and the gun charge.
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A panel of three Superior Court judges rejected that argument in Livingston’s initial appeal last December, upholding his convictions on other grounds. But scarcely six months later, a different three-judge panel reached the opposite conclusion in another case from Philadelphia.
Police arrested Riyaadh Sumpter after officers spotted him walking on a street with the grip of a handgun visibly protruding from his waistband. He was charged with and convicted of violating Section 6108 of the Uniform Firearms Act.
On appeal, the panel found the law unconstitutional on an equal protection basis, because it places people in Philadelphia at a “special disadvantage in the exercise of their Second Amendment right.” Prosecutors failed to show a compelling interest that was served by the restriction that would justify the infringement of Sumpter’s right to bear arms, the decision said.
The disagreement within the Superior Court, the commonwealth’s frontline appeals court, would be reason enough for the Supreme Court to review the cases, Craig Storrs, executive director of Pennsylvania Gun Rights, said.
But he and Adam Garber, executive director of CeaseFirePA, said there has been a wave of litigation around the country in the wake of U.S. Supreme Court decisions that limited the scope of tougher gun laws in recent years.
“This is the court saying we’re taking a much closer look at these gun control laws and these carve outs, these special exemptions, we have,” Storrs said.
The Uniform Firearms Act has been on the books since 1972 and the restriction on openly carrying guns in Philadelphia has not been successfully challenged, Garber said.
And although the U.S. Supreme Court has issued two major opinions in the last 20 years that struck down state-level restrictions on gun ownership, Garber noted the justices have taken pains to make clear that they didn’t open the door to invalidate all local gun safety efforts.
Most recently in 2022, when a 6-3 majority struck down New York’s law requiring people applying for handgun permits to show a special need to defend themselves, Justice Brett Kavanaugh said the decision would not bar states from imposing objective requirements for gun licensing.
In his concurring opinion, Kavanaugh cited the late Justice Antonin Scalia’s opinion in the court’s 2008 decision striking down the District of Columbia’s ban on handgun ownership.
“Maybe they’re trying to say there are reasonable restrictions under the Constitution and they’re thinking it’s time to define them properly,” Garber said.
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The Philadelphia District Attorney’s Office, led by District Attorney Larry Krasner, is in the position of defending the state law in the appeal, but Garber noted it’s possible the city itself could join in support of the law.
A spokesperson for Krasner said in a statement that unlicensed open carrying of firearms in public should be a violation in every Pennsylvania county.
“This matter could be resolved by new legislation, rather than the Pennsylvania Supreme Court, if Republicans in the state legislature applied violations of [Section 6108 of the Uniform Firearms Act] to all counties across the state rather than unjustly singling out Philadelphia,” Krasner said.
While the state House is set to pass a suite of bills to tighten Pennsylvania gun laws this week, they don’t include an expansion of the concealed carry licence requirement to cover open carry. And in past sessions, when the GOP controlled both chambers, efforts to eliminate the concealed carry permit requirement altogether made it to former Gov. Tom Wolf’s desk, only to be vetoed.
In the Livingston case now before the state Supreme Court, the justices limited the question to whether the license requirement in Philadelphia violates Article 1 of the state constitution and the 14th Amendment to the U.S. Constitution, both of which guarantee equal protection under the law.
In upholding Livingston’s conviction, the Superior Court judges said they were bound by a 2014 decision of the Superior Court that found the right of people in Philadelphia to openly carry firearms on the street without a license was not fundamental. Controlling the “staggeringly disproportionate” incidence of gun violence in Philadelphia was a legitimate state interest that justifies any infringement on rights, the court said.