Pennsylvania Court Rejects Philly’s Ban on Open Carry

Though Pennsylvania law allows for the open carrying of firearms without the need for a permit, in the City of Brotherly Love the practice is prohibited altogether. Now though, a Pennsylvania appeals court has ruled that Philly’s ban on open carry without a license violates both the state and U.S. Constittuion, at least as it applies to one man. 

The ruling came about after Philadelphia resident Riyaadh Sumpter was arrested and charged with illegally carrying a gun in 2022. Sumpter told police that he was open carrying because he was concerned for his safety in the city, which at the time was in the midst of a sharp spike in homicides and other violent crimes. Sumpter ended up taking a guilty plea and received probation, but appealed his conviction by raising constitutional issues about the law. 

This week, the Pennsylvania Superior Court gave Sumpter the relief he was requesting. 

“The right to keep and bear arms outside the home is a fundamental right protected by the Second Amendment,” wrote the court. “Open carry without a license is lawful for those 18 years of age and older elsewhere in the Commonwealth but criminal in Philadelphia. Thus, [the Philadelphia ban] places persons within the City of Philadelphia at a special disadvantage in the exercise of their Second Amendment right.”

Oddly, Sumpter wasn’t convicted of violating a city ordinance, even though Philadelphia is the only locality in the state where open carry is outlawed. Instead, he pled guilty to violating a state law that reads, “No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless: (1)  such person is licensed to carry a firearm; or (2)  such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).”

Philadelphia is the only “city of the first class” in the state, so the law is essentially a carveout to the state’s open carry statute, which otherwise allows for lawful gun owners to openly bear arms without the need for a government-issued permission slip. 

Writing for the majority, Judge Stabile held that § 6108 violates the Equal Protection Clause as applied to individuals exercising their Second Amendment rights in Philadelphia. The Court explained that under District of Columbia v. Heller, McDonald v. City of Chicago, and New York State Rifle & Pistol Ass’n v. Bruen, the right to carry firearms in public for self-defense is a fundamental constitutional right. Because the law burdens a fundamental right, it must satisfy strict scrutiny.

The Commonwealth argued that the law was justified by Philadelphia’s high crime rate and the need for prosecutors to have additional enforcement tools. The Superior Court rejected that rationale, holding that such generalized concerns do not justify discriminatory geographic restrictions on constitutional rights. The government failed to show that § 6108 was narrowly tailored to serve a compelling interest.

The Equal Protection language is pretty important, because it allowed the Superior Court to sidestep whether open carry can be banned if concealed carry is allowed; an argument raised by the state of California in a challenge to its own open carry ban. Pennsylvania does broadly allow for both open and concealed carry, and the state hasn’t required a permit to openly carry anywhere else other than Philadelphia. That does put residents and visitors on an unequal footing to those in virtually every other community in the Keystone State.

A note of caution before you decide to test out the impact of this week’s ruling, though. Sumpter’s case was an “as applied” challenge, not a facial challenge to the statute. As such, the Superior Court’s decision only impacts his case, at least for the time being. Others charged with violating the same statute can bring up the court’s decision, and I wouldn’t be surprised to see a facial challenge to the law filed in the future, but for the moment Philadelphia police can and most likely will continue to arrest anyone they catch openly bearing arms without a valid license to carry.