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State Preemption/Local Authority to Regulate Firearms |
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For a general discussion of the preemption issue and local authority to regulate firearms, please see LCAV's State Preemption/Local Authority summary. For background information on the issue of federal preemption, see the Federal Preemption section of LCAV's Federal Law Summary. |
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Alabama |
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Last Updated August 17, 2010 In 1982, Alabama enacted a specific handgun-related preemption statute, Alabama Code § 11-45-1.1, which states:
In Ex parte Childers, 640 So. 2d 16 (1994), the Supreme Court of Alabama found a municipal ordinance prohibiting the possession of all firearms, including handguns, on the premises of any business maintaining a "lounge retail liquor license" to be preempted by section 11-45-1.1 (despite the fact that § 11-45-1.1 relates only to handguns, and does not proscribe local regulation of other firearms). Alabama Attorney General opinions have reinforced the total preemptive effect of section 11-45-1.1 on municipal handgun regulation. For example, the Attorney General has opined that under section 11-45-1.1, municipalities have no authority to enact any ordinance dealing with handguns. 1984 Ala. AG LEXIS 3, 197 Op. Att'y Gen. Ala. 26 (December 3, 1984), and 1987 Ala. AG LEXIS 2, 209 Op. Att'y Gen. Ala. 41 (December 18, 1987). The Attorney General has stated that while a municipality may not adopt a workplace violence prevention policy for its employees prohibiting employees from possessing handguns in the workplace, the municipality may adopt a policy prohibiting possession of any other type of weapon by employees. 2001 Ala. AG LEXIS 163, No. 2001-267 (August 28, 2001). Section 11-80-11, enacted in 2000, also significantly affects the ability of municipalities and counties to regulate the sale, possession and use of all firearms, not only handguns. Section 11-80-11(a) states: "No county or municipal corporation, instrumentality, or political subdivision thereof, by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, registration or use of firearms, ammunition, components of firearms, firearms dealers, or dealers in firearm components." Under Alabama law, a firearm is defined as "[a] weapon from which a shot is discharged by gunpowder." Ala. Code §§ 13A-8-1(4) and 13A-11-62(1). By its terms, section 11-80-11 does not affect the authority of:
Section 11-80-11(b)(2) also states:
There are no cases interpreting section 11-80-11. However, the Attorney General has opined that even under sections 11-45-1.1 and 11-80-11 a city may still:
2005 Ala. AG LEXIS 94, No. 2005-127 (May 10, 2005). Section 6-5-341, pertaining to the regulation of sport shooting ranges, states that rules or regulations adopted by any governmental body (including any county or municipal governing body per § 6-5-341(a)(1)) limiting levels of noise in terms of decibel level or limiting levels of lead occurring in the atmosphere shall not apply to a sport shooting range exempted from liability under section 6-5-341. Section 6-5-341(d), (e). For further information, please see the Alabama Immunity Statutes section. Finally, city and town councils have the power to revoke any license issued to a location where firearms are kept for sale when "the public safety, peace, good order or decency may require it" and when the owner or operator of the location has been convicted of any violation of city or town ordinances regulating such a business. Section 11-51-103. A city or town has the power to authorize the mayor or other chief executive officer by proclamation to cause any or all houses or places of amusement or houses or places for the sale of firearms to be closed for a period not longer than the next meeting of the city or town council or other governing body. Section 11-51-102. |
Alaska |
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Last Updated January 13, 2012 Alaska has expressly preempted most local firearm regulation. Alaska Statutes § 29.35.145(a) provides:
Municipalities may, however, adopt ordinances that:
In addition, the prohibition on taxation in section 29.35.145(a) does not include imposition of a sales tax that is levied on all products sold within a municipality. Section 29.35.145(c). Alaska Statutes § 18.65.800(a) also restricts local gun regulation, providing that:
An employer or its agent may, however, prohibit firearm possession within a secured restricted access area (as defined in § 29.35.145(e)(2), see above), in a vehicle owned, leased, or rented by the employer or its agent, or in a parking lot owned or controlled by the employer within 300 feet of the secured restricted access area. Section 18.65.800(d). The state, a municipality, or a person is not liable for any injury or damage resulting from the storage of a firearm in the vehicle of another individual in accordance with section 18.65.800. Section 18.65.800(c). In addition, section 18.65.778 provides that “[a] municipality may not restrict the carrying of a concealed handgun by permit” issued in accordance with Alaska law. Although Alaska has a comprehensive permitting scheme for the carrying of concealed handguns under sections 18.65.700 to 18.65.790, such permits are no longer required. There are no cases interpreting the aforementioned statutes. |
Arizona |
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Last Updated June 28, 2010 Arizona Revised Statutes § 13-3108 provides in part:
In 2010, Arizona enacted two laws that add to this section. The first new law added a subsection that reads:
2010 Ariz. ALS 19. That law also removed local authority to limit firearm possession in certain parks and preserves, and made clear that the state’s restrictions on local authority apply whether the political subdivision is acting pursuant to its police power, in a proprietary capacity, or otherwise. Id. The second new law added a subsection that prohibits a political subdivision from requiring or maintaining a record in any form, whether permanent or temporary, including a list, log or database, of any of the following:
Nevertheless, section 13-3108 permits political subdivisions to enact and enforce firearms regulations that:
The Attorney General of Arizona has opined that state law would preempt an ordinance generally prohibiting the carrying of a firearm outside one’s own real property. Op. Ariz. Att’y Gen. I78-274, 1978 Ariz. AG LEXIS 16 (Nov. 3, 1978). In City of Tucson v. Rineer, 971 P.2d 207 (Ariz. Ct. App. 1998), superseded by statute, 2010 Ariz. ALS 19, the court rejected a section 13-3108(A) challenge to a Tucson ordinance that prohibits the use or possession of firearms within city parks. The court rejected the argument that the statute occupies the entire field of firearms regulation, stating that while the statute prohibits political subdivisions from enacting certain firearm-related ordinances, the statute "is specific in its prohibitions" and had the legislature intended that the statute preclude all local regulation of possessing or carrying weapons, it would have expressly said so. Rineer, 971 P.2d at 210. The court also found that the provisions in section 13-3108(B) would be superfluous if section 13-3108(A) precluded all local firearms regulation. Rineer, 971 P.2d at 210. Note that, in 2010, the Arizona Legislature removed local authority to limit firearm possession in certain parks and preserves. 2010 Ariz. ALS 19. The court of appeals again rejected a section 13-3108 challenge to a local firearm-related regulation in McMann v. City of Tucson, 47 P.3d 672 (Ariz. Ct. App. 2002), superseded by statute, 2003 Ariz. ALS 162 § 1. In McMann, gun show promoters argued that section 13-3108 preempted a Tucson regulation requiring, as a condition of the promoter's use permit, instant background checks for prospective gun purchasers at gun shows held at the Tucson Convention Center (TCC). McMann, 47 P.3d at 674. The court held that the legislature did not clearly intend to preempt Tucson from requiring background checks on prospective firearms purchasers at events held at the TCC. Id. at 678. Following the McMann case, the Legislature amended section 13-3108, which permits local jurisdictions to regulate the land and structures of firearms and ammunition-related businesses in the same manner as other commercial businesses. The following provision was added in 2003:
Section 17-602(A) states that outdoor shooting range noise standards are a matter of statewide concern, and provides that city, town, county and any other state noise standards are preempted as applied to outdoor shooting ranges. Section 17-605(A) states that compliance with Arizona Revised Statutes Title 17, Chapter 6, Article 1 is an affirmative defense to any civil liability or claim for equitable relief arising from any allegation regarding noise or noise pollution from an outdoor shooting range. Finally, Arizona Revised Statutes § 12-714(A) states that "[a] political subdivision of this state shall not commence a qualified civil liability action in any Arizona court" against a firearms manufacturer or seller. See the Arizona Immunity Statutes section for further information. |
Arkansas |
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Last Updated December 14, 2011 Arkansas Code Annotated §§ 14-54-1411(b)(1) (regulating municipalities) and 14-16-504(b)(1) (regulating counties) provide:
A "local unit of government" is defined as "a city, town, or county." Sections 14-16-504(a), 14-54-1411. A county may also regulate the discharge of firearms at the request of the governing body of a suburban improvement district, per section 14-16-501, or a property owners' association, per section 14-16-502. There is no case law interpreting these statutes. Finally, in regard to the local regulation of shooting ranges, section 14-1-101 requires that when a local government enacts an ordinance affecting an existing sports shooting range in the jurisdiction, the range must be allowed to continue operation even if it does not comply with the new ordinance. In addition, a local government may not prohibit a shooting range that was in existence on or before August 12, 2005, from performing certain repairs, remodeling, expanding or enhancing its membership, facilities or activities. For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see the Arkansas Immunity Statutes/Manufacturer Litigation section. |
California |
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Last Updated July 2, 2008 Article XI, § 7 of the California Constitution provides that "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Under this provision, a local government’s police power is as broad as the state Legislature's power, and a city or county may act to protect the welfare of its residents. Candid Enterprises v. Grossmont Union High School District, 705 P.2d 876, 882 (Cal. 1985). A local government's police power includes the power to regulate firearms. Galvan v. Superior Court of San Francisco, 452 P.2d 930 (Cal. 1969). Ordinances enacted pursuant to the police power are valid unless they conflict with state law. Sherwin-Williams Co. v. City of Los Angeles, 844 P.2d 534, 536 (Cal. 1993). A conflict exists if the ordinance contradicts, duplicates, or enters an area occupied by general law, either expressly or by legislative implication. Id. at 536-7. "An ordinance contradicts state law if it is inimical to state law; i.e., it penalizes conduct that state law expressly authorizes or permits conduct which state law forbids." Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420, 428 (Cal. Ct. App. 1997). Local law is duplicative of state law if it is coextensive with state law. Sherwin-Williams, 844 P.2d at 536. Finally, "local legislation enters an area that is 'fully occupied' by [state] law when the Legislature has expressly manifested its intent to ‘fully occupy’ the area or when it has impliedly done so." Id. at 536-7. (citations omitted) The California Legislature has expressly preempted the following areas of firearms law: 1) licensing or registration of commercially manufactured firearms (Cal. Gov't Code § 53071); 2) licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business (Cal. Penal Code § 12026); and 3) regulation of the manufacture, sale or possession of "imitation firearms" (Cal Gov't Code § 53071.5). California Government Code § 53071 provides:
California Penal Code § 12026(b) provides:
California Government Code § 53071.5 provides:
In addition, California generally permits local regulation of sport shooting ranges, but provides that local jurisdictions may not enforce new or amended noise control laws on shooting ranges that are in operation and not in violation of existing law at the time of the enactment of the new or amended noise control ordinance, if there has been no substantial change in the nature or use of the range. Cal. Civ. Code § 3482.1(d). Courts will not infer preemption unless the circumstances clearly indicate the Legislature intended to preempt the field. California Rifle and Pistol Ass'n, Inc. v. City of West Hollywood, 78 Cal. Rptr. 2d 591, 600 (Cal. Ct. App. 1998) (holding that state law did not preempt a local ordinance banning the sale of Saturday Night Specials). The Supreme Court of California has held that local regulation may be preempted when the Legislature "has impliedly done so in light of one of the following indicia of intent:"
Sherwin-Williams Co., 844 P.2d at 537 (citations omitted). Courts have looked to the Legislature’s response to court rulings as an indicator of legislative intent. When courts have ruled that the field of firearms regulation or subfields of firearms regulation are not preempted, the Legislature has responded by choosing to preempt only a few subfields and not to preempt the entire field of firearms or other subfields of firearms regulation; courts have found that such a response indicates an intent not to preempt local regulation. Ultimately, the question to be resolved in an implied preemption analysis "is not whether a statute grants [a locality] a power, but whether a statute deprives [a locality] of a power already bestowed upon the [locality] by the Constitution." Id. at 602. See also Id. at 598-601 (Legislature's history of selective and narrow preemption in response to courts holding that the Legislature had not preempted local firearms regulations indicated that the Legislature had expressly avoided preemption). Suter v. City of Lafayette, supra, involved a preemption challenge to an ordinance regulating the location and operation of firearms dealers. Gun sellers challenged the ordinance on state preemption grounds. The court of appeal dismissed the action, holding that local governments are not generally excluded by state law from imposing additional licensing requirements on firearm dealers. Suter, 67 Cal. Rptr. 2d at 422. The court found that, with one exception (it struck down the portion of the ordinance regulating firearm storage), the ordinance provisions did not conflict with, duplicate, or enter into a field fully occupied by state law and were not, therefore, preempted. Id. In Doe v. City and County of San Francisco, 186 Cal. Rptr. 380 (Cal. Ct. App. 1982), the Court of Appeal of California held that Gov't Code § 53071 and Penal Code § 12026 expressly preempted a local ordinance banning the possession of handguns. Because the ordinance contained an explicit exception for concealed weapons licensees, the court found that the measure had the effect of creating a new class of persons who would be required to obtain a license in order to possess a handgun in their home or place of business. Id. at 384. The court also stated that:
Id. at 385 (citation omitted). Cases subsequent to Doe demonstrate that section 12026 should be read narrowly. See City of West Hollywood, 78 Cal. Rptr. 2d at 605 (rejecting argument that section 12026 creates a broad right to purchase or possess any handgun not specifically prohibited by state law). The Supreme Court of California reaffirmed the authority of local governments to regulate firearms – this time in the context of gun shows – in two related cases: Great Western Shows, Inc. v. County of Los Angeles, 44 P.3d 120 (Cal. 2002) and Nordyke v. King, 44 P.3d 133 (Cal. 2002). Great Western involved a challenge to a Los Angeles County ordinance prohibiting the sale of firearms and ammunition on county-owned property. The County adopted the ordinance after a California Department of Justice undercover operation revealed numerous illegal firearm sales at a gun show held on the county fairgrounds. Legislative findings accompanying the ordinance also recited the high incidence of gun-related deaths and injuries in the County. Great Western Shows, Inc., a gun show promoter, filed suit in the United States District Court for the Central District of California, alleging, among other things, that the ordinance was preempted by state law and violated the First Amendment. The district court granted a preliminary injunction, holding that the complaint raised substantial questions regarding whether state law preempted the ordinance. The County filed an interlocutory appeal in the U.S. Court of Appeals for the Ninth Circuit, which then certified to the state supreme court questions relating to preemption and jurisdiction. The supreme court upheld the ordinance, rejecting plaintiff's claim that state law has preempted the field of gun show regulation. The court observed that there is no express preemption in this area, noting that, on the contrary, Penal Code sections 12071 (concerning the licensing of firearm dealers) and 12071.4 (regulating gun shows) explicitly acknowledge the existence of local laws pertaining to gun shows. The court found the ordinance not duplicative of or in conflict with state law, stating that although gun show statutes regulate, inter alia, the sale of guns at gun shows and therefore contemplate gun shows, the statutes do not mandate sales such that a limitation of sales on county property would be in direct conflict with the statutes. Great Western, 44 P.3d at 128. The court refused to find implied preemption under the three "indicia of intent" detailed in Sherwin-Williams Co., supra, finding first that state law does not clearly indicate that gun show regulation has become exclusively a matter of state concern. The court declined to find a "paramount state concern" that will not tolerate further local action, noting judicial reluctance to find such a concern where there is a significant local interest to be served that may differ from one community to another: "It is true today as it was more than 30 years ago when we stated it in Galvan, '[t]hat problems with firearms are likely to require different treatment in San Francisco County than in Mono County.' (Galvan, supra, 70 Cal. 2d at p. 864.)" Thus, the court found, the costs and benefits of making firearms more available through gun shows to the populace of a heavily urban county such as Los Angeles may well be different than in rural counties, where violent gun-related crime may not be as prevalent. Great Western, 44 P.3d at 128-129. The court also refused to find implied preemption under the third "indicia of intent," agreeing with previous cases that "[l]aws designed to control the sale, use or possession of firearms in a particular community have very little impact on transient citizens." Great Western, 44 P.3d at 129. See Galvan, 452 P.2d at 939. In addition, the court rejected Great Western's claim that, while state law may permit local gun show regulations, it would not tolerate a regulation that would have the effect of banning of such shows. The court found nothing in state law to indicate a stated purpose of promoting or encouraging gun shows; rather, state law merely acknowledges that such shows take place and regulates them to promote public safety. The court noted further that the ordinance does not affect gun shows countywide, but only disallows gun sales on county-owned property. The court found that none of the gun show statutes impliedly seek to override a county's ability to manage its property and make fundamental decisions regarding its use:
Great Western, 44 P.3d at 130-131. The Supreme Court of California issued a similar ruling in Nordyke v. King, 44 P.3d 133 (Cal. 2002), rejecting a challenge to an Alameda County ordinance prohibiting the possession of firearms and ammunition on county-owned property. The County had adopted the ordinance after a mass shooting at the county fairgrounds on July 4, 1998, and recited the epidemic of gunshot fatalities and injuries in the County as additional justification for the ordinance. Nordyke was filed by gun show promoters in the United States District Court for the Northern District of California. Plaintiffs sought to enjoin enforcement of the ordinance, arguing that it was preempted by state law and violated the First Amendment. The district court rejected these arguments and plaintiffs filed an interlocutory appeal in the Ninth Circuit. As in the Great Western case, the Ninth Circuit certified to the Supreme Court of California the question of whether state law preempted the ordinance. Incorporating its analysis and holding in Great Western, the supreme court found that state law does not preempt the Alameda County ordinance. The court held that the ordinance does not duplicate or contradict state law governing the possession of firearms, including Penal Code section 171b, which exempts from its prohibition on gun possession in public buildings persons who lawfully possess firearms at gun shows:
The court noted that the ordinance may be more restrictive than state statutes inasmuch as the latter provide more exceptions to the general prohibition on firearm possession (e.g., those for animal control officers). However, the court stated that "the fact that certain classes of persons are exempt from state criminal prosecution for gun possession does not necessarily mean that they are exempt from local prosecution for possessing the gun on restricted county property." Id. In addition, the court held that even if the ordinance were partially preempted, it would not be invalidated as a whole. Most recently, in Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895 (Cal. Ct. App. 2008), the Court of Appeal of California, First Appellate District (the same court that decided the Doe case), considered whether Proposition H, a municipal ordinance prohibiting the sale, distribution, transfer and manufacture of all firearms and ammunition in San Francisco and banning possession of handguns by San Francisco residents, was preempted by state law. The court held that Penal Code section 12026(b) and Government Code section 53071 preempted the ban on handgun possession. The court also found that section 53071 and Penal Code sections 12026(b) and 12125 - 12133 (the state Unsafe Handgun Act) preempted the transfer and manufacture prohibitions. The California Supreme Court declined to review the case. |
Colorado |
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Last Updated October 25, 2010 Article XX, § 6 of the Colorado Constitution, entitled “[h]ome rule for cities and towns” provides, in part, that:
Article XX, § 6 is designed to “grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters.” In determining the respective authority of the state legislature and home rule municipalities, the Supreme Court of Colorado has recognized three broad categories of regulatory matters: local concern, state concern, or mixed local and state concern. U.S. West Communications, Inc. v. City of Longmont, 948 P.2d 509, 515 (Colo. 1997), citing City and County of Denver v. State, 788 P.2d 764 (Colo. 1990). In matters of local concern, both home rule cities and the state may legislate, but when a home rule ordinance or charter provision and a state statute conflict, the home rule provision supersedes the conflicting state provision. Id. In matters of statewide concern, the General Assembly may adopt legislation and preempt the power of home rule municipalities to enact conflicting legislation. Finally, in matters of mixed local and state concern, a home rule municipality's charter or ordinance provision may coexist with a state statute so long as there is no conflict. In the event of a conflict, the state statute supersedes the charter or ordinance. Id. Although the three categories are not “mutually exclusive or factually perfect, several general factors are useful under a totality of circumstances test to determine whether an issue is one of state, local, or mixed local and state concern, including the need for statewide uniformity of regulation, extraterritorial impact, other state interests, and local interests.” Id. Colorado has also adopted several preemption statutes related to firearms. Colorado Revised Statutes § 29-11.7-103 provides:
Colorado Revised Statutes § 29-11.7-101(2) refers to the regulation of firearms as a matter of "statewide concern" and declares a need for statewide uniformity of regulation in the area of firearms. That statute also declares that inconsistency among local jurisdictions has an extraterritorial impact on state citizens and the general public. Id. Moreover, section 18-12-105.6(2) provides that:
The state concealed weapons act provides in its legislative findings that "[i]t is necessary that the state occupy the field of regulation of the bearing of concealed handguns." Section 18-12-201(1)(e). Local governments may still enact regulations prohibiting the open carrying of firearms in a building or specific area within the local government's jurisdiction, as long as the local government posts signs to that effect. Section 29-11.7-104. Subsequent to these enactments, the City and County of Denver ("City") sued the state seeking declaratory and injunctive relief regarding Denver ordinances that, among other provisions: 1) regulated the open carrying of firearms; 2) banned assault weapons and Saturday night specials; and 3) restricted the open carrying of firearms in city parks. City and County of Denver v. State, No. 03-CV-3809 (Colo. Dist. Ct. Nov. 5, 2004). On November 5, 2004, Denver District Court Judge Joseph Meyer granted declaratory and injunctive relief to the City with regard to several ordinances and portions of ordinances. The court also found that state law renders some of Denver's ordinances and portions of ordinances invalid, however. In making its ruling, the court determined on a case-by-case basis whether each ordinance at issue addressed a matter of local concern, statewide concern, or mixed local and statewide concern. The court determined that Denver’s ordinances regulating the open carrying of firearms, assault weapons and Saturday night specials, and the open carrying of firearms in city parks involve matters of local concern and enjoined the state from enforcing its preemption laws against the City in these areas. Id. The court held that ordinances and portions of ordinances addressing juvenile possession of firearms, carrying concealed firearms with a permit in a public park, and concealed weapon permitting, involved matters of mixed local and state concern (the City conceded the point as to concealed weapon permitting) and were invalid where they conflicted with state law. Id. In determining that the ordinances addressing the open carrying of firearms, assault weapons, Saturday night specials, and the open carrying of firearm in city parks were matters of local concern, the court noted the unique characteristics that differentiate Denver from other parts of the state, such as high population density and a high crime rate, stating that these characteristics outweigh the need for statewide uniformity in these areas. The court quoted a statement made by the Assistant City Attorney at oral argument, "Simply put, a bullet fired in Denver – whether maliciously by a criminal or negligently by a law-abiding citizen – is more likely to hit something or somebody than a bullet fired in rural Colorado." Id. An analogous lawsuit was filed against Denver by the Aurora Gun Club seeking to invalidate the same Denver ordinances, with a similar outcome. Aurora Gun Club v. City and County of Denver, No. 03-CV-8609 (Colo. Dist. Ct. 2004). The Supreme Court of Colorado considered the appeal of these two cases in early 2006. On June 5, 2006, in an unusual 3-3 court deadlock, the aforementioned lower-court decisions were allowed to stand. Thus, Denver may now enforce its ordinances regulating the open carrying of firearms generally and in city parks, and banning assault weapons and Saturday night specials. The split provided no clear ruling on the preemption issues involved with these firearm ordinances. Colorado provides that a local government, including a law enforcement agency, shall not maintain a list or other form of record or database of:
Colorado Revised Statutes § 29-11.7-102(1). Finally, state law prohibits local governments from enacting noise regulations concerning shooting ranges. See section 25-12-109(1). Counties may regulate the discharge of firearms in areas with an average population of at least 100 persons per square mile. Section 30-15-302. |
Connecticut |
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Last Updated April 19, 2011 Connecticut has not expressly preempted local laws in the area of firearms regulation. Connecticut courts also have not found that the legislature has demonstrated an intent to occupy the field of firearms and ammunition regulation. Absent a direct conflict with state law, broad local firearms and ammunition regulation appears possible. In Dwyer v. Farrell, 475 A.2d 257 (Conn. 1984), the Supreme Court of Connecticut considered whether Connecticut General Statutes § 29-28, which authorizes persons to sell handguns at retail if issued a state permit, preempted a New Haven ordinance that placed further restrictions on persons seeking to sell handguns. The court acknowledged that the existence of a state law does not necessarily preempt a local government from regulating the same subject matter as long as such regulation is consistent with state law. Dwyer, 475 A.2d at 260. The court stated that to determine whether a local ordinance conflicts with state law, the court must review the purpose behind the state law and measure the degree to which the ordinance frustrates achievement of that purpose. Id. The court found that the New Haven ordinance frustrated the purpose of section 29-28 by prohibiting an entire class of persons from selling handguns that the state would have allowed. Dwyer, 475 A.2d at 261. The court found that this created an irreconcilable conflict between New Haven’s ordinance and the statute, which rendered the ordinance preempted. Id. See also Kaluszka v. Town of E. Hartford, 760 A.2d 1282 (Conn. Super. Ct. 1999) (finding that a municipal ordinance regulating the discharge of firearms had the effect of regulating hunting, which was preempted by the state’s extensive hunting laws). The supreme court discussed the general principles governing preemption more recently in Modern Cigarette, Inc. v. Town of Orange, 774 A.2d 969 (Conn. 2001). In Modern Cigarette, the court considered whether state licensing and regulatory standards for cigarette vending machines preempted an ordinance adopted by the Town of Orange to prohibit such machines entirely. Id. at 970-76. The court reiterated the basic standards outlined in Dwyer and upheld the ordinance, reasoning that state law did not expressly authorize cigarette vending machines, but instead imposed a series of limitations or prohibitions on their use that allowed for additional local regulation, including an outright prohibition. Id. at 983-84. The court also noted that public safety ordinances are given a presumption of validity. Id. at 977. Connecticut General Statutes § 22a-74a(b) states that a municipality’s noise control ordinance that limits noise in terms of decibel level in the outdoor atmosphere shall not apply to any firing or shooting range operating on October 1, 1998, if the standards set forth in the ordinance are inconsistent with Connecticut General Statutes Chapter 442 or regulations adopted under this Chapter. However, section 22a-74a does not limit the ability of a municipality to regulate an increase in noise attributable to a physical expansion of an existing firing or shooting range. Section 22a-74a(c). |
Delaware |
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Last Updated January 18, 2011 Delaware Code Annotated Title 22, § 111 provides, in part:
"Municipal governments" include all cities, towns and villages created under any general or special law for general governmental purposes, which possess legislative, administrative and police powers for the general exercise of municipal functions and which carry on such functions through a set of officials, and all unincorporated towns. Del. Code Ann. tit. 22, Chapter 1. The "justification defenses as found in [title 11, §§ 461-471]" include such defenses to criminal liability as the use of force for self-protection, the protection of other persons, and the protection of property. Delaware Code Annotated Title 22, § 835(a)(6) specifically prohibits amending a municipal charter to:
County governments are likewise restricted from enacting any "law or regulation prohibiting, restricting or licensing the ownership, transfer, possession or transportation of firearms or components of firearms or ammunition" with an exception for discharge bans that incorporate the justification defenses as found in [tit. 11, §§ 461-471]. Del. Code Ann. tit. 9, § 330(c). There is little case law interpreting title 22, § 111, title 22, § 835(a)(6) and title 9, § 330(c). See, e.g., Sills v. Smith & Wesson Corp., No.: 99C-09-283-FSS, 2000 Del. Super. LEXIS 444 (Del. Super. Ct. Dec. 1, 2000) (rejecting, in part, a motion to dismiss Wilmington, Delaware’s suit for damages caused by handguns against several firearms manufacturers and trade associations). Delaware makes null and void any and all local ordinances that make a shooting range or hunting operation a nuisance or provide for abatement of the shooting range or hunting operation as a nuisance because of changed conditions in or about the locality. This restriction does not apply whenever nuisance results from the negligent or improper operation of any such shooting range or hunting operation or any of its appurtenances, or when there has been a significant and fundamental change in the operation itself. Del. Code Ann. tit. 10, § 8142(d). |
District of Columbia |
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Last Updated September 2, 2010 The District of Columbia has broad authority to regulate firearms. The District derives legislative powers from the Home Rule Act (D.C. Code Ann. § 1-201.01 et seq.), enacted in 1973. Section 1-303.43 incorporates an earlier grant of power (formerly § 1-321; originally § 1-227, enacted in 1906) authorizing the District Council to make and enforce laws regulating firearms and ammunition. The statute provides that:
In McIntosh v. Washington, 395 A.2d 744 (D.C. 1978), the District of Columbia Court of Appeals rejected a challenge to the District’s Firearms Control Regulations Act of 1975 (now § 7-2501.01 et seq.), relating to the use and sale of firearms. Appellants argued that the City Council was without authority to adopt the Act because the legislative history of section 1-147(a)(9) (now the amended § 1-206.02(a)(9)) of the Home Rule Act, requiring elected Council members to wait 24 months after taking office before enacting certain legislation, demonstrated Congress' intent to prohibit the District from adopting a comprehensive criminal regulatory scheme. The court rejected this argument, holding that the statute does not limit the District's authority to enact firearms regulations that do not conflict with existing Congressional regulation for the District. McIntosh, 395 A.2d at 753. The court noted that the federal Gun Control Act of 1968 explicitly provides that Congress has no intent to occupy the field of gun regulation to the exclusion of state law touching on the same subject matter "unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together. [Emphasis added.]" Id. Finding no "direct and positive" conflict between the District’s gun control regulations and the Home Rule Act, the court stated:
McIntosh, 395 A.2d at 753. In Maryland & District of Columbia Rifle and Pistol Ass'n, Inc. v. Washington, 442 F.2d 123 (D.C. Cir. 1971), a case decided before enactment of the Home Rule Act, the U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the District’s local police firearm regulations (D.C. Pol. Reg. Arts. 50-55, subsequently repealed and replaced by D.C. Code Ann. § 7-2501.01 et seq.). The court held that the enactment of firearm legislation for the District by the U.S. Congress did not preempt the District Council’s right to adopt additional firearms regulations pursuant to an act of 1906 authorizing the Council to make and enforce all regulations deemed necessary for the regulation of firearms. The court concluded that the existence of both Congressional and District regulation on the same subject matter was not problematic, as long as the two regulatory schemes did not conflict. The court stated:
Maryland & District of Columbia Rifle and Pistol Ass'n, Inc., 442 F.2d at 130 (footnotes omitted). In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the U.S. Supreme Court found that the District’s decades-old ban on handgun possession and its requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device were unconstitutional violations of the Second Amendment. In Heller, the Court held that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense, and struck down the handgun possession ban as well as the safe storage law (which had no exception for self-defense). The District must now take into consideration this right under the Amendment when adopting firearm-related laws. For more information on the Heller case, see LCAV’s materials on the Second Amendment. |
Florida |
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Last Updated June 10, 2010 Florida has enacted a broad preemption statute concerning firearm regulations, under Florida Statutes Annotated § 790.33(1), which states:
Fla. Stat. §§ 125.0107 and 166.044 also prohibit counties and municipalities, respectively, from adopting any ordinance relating to the possession or sale of ammunition. In Penelas v. Arms Technology, Inc., 778 So.2d 1042 (Fla. Dist. Ct. App. 2001), Miami-Dade County sued firearms manufacturers alleging, inter alia, that the manufacturers' products were defective, ultra hazardous, and created a public nuisance, seeking damages and injunctive relief. The Court of Appeal of Florida dismissed the County's claims, holding that section 790.33 "expressly preempts to the state legislature the entire field of firearm and ammunition regulation" and stating that local governments cannot use the judiciary to attempt "to 'enact' regulatory measures in the guise of injunctive relief." Penelas, 778 So.2d at 1045. In National Rifle Ass’n of Am., Inc. v. City of South Miami, 812 So.2d 504, 505-06 (Fla. Dist. Ct. App. 2002), the Court of Appeal of Florida found that an ordinance requiring the use of locking devices on firearms stored within the City (South Miami, Fla. Code § 14-00-1716) was "null and void" due to a conflict with section 790.33, stating that the "legislature…has…expressly preempted the entire field of firearm and ammunition regulation." The court also rejected an opinion by the Florida Attorney General (Op. Att'y Gen. 2000-42 (July 11, 2000)), opining that a locking device ordinance would not be preempted by section 790.33 because the statute does not mention firearm storage and the ordinance would not interfere with the "right to bear arms." The Attorney General of Florida has concluded that counties are prevented by section 790.33 from enacting ordinances that prohibit the discharge of firearms "in proximity to persons or property," even when the ordinance is adopted for public health and safety purposes. Op. Att'y Gen. Fla. 2005-40, 2005 Fla. AG LEXIS 46. Section 790.33 does not, however, prevent employers from regulating their employees' use or possession of firearms while on the job. (Note, however, that in 2008, Florida adopted a law stating that employers may not prohibit an employee from possessing a legally owned firearm or ammunition locked inside or locked to a private motor vehicle in a parking lot. See the Florida Guns in Vehicles section for further information.) In Pelt v. Florida Dept. of Transportation, 664 So.2d 320, 321 (Fla. Dist. Ct. App. 1995), the court of appeal rejected a section 790.33 challenge to an employee’s suspension for carrying a licensed weapon on the job and firing it on break in violation of company policy. In upholding the employee's five-day suspension, the court noted that section 790.33 was directed toward local government's regulation of the conduct of its own citizens and found that "sound policy reasons" exist to allow employers to regulate their employees' use and possession of firearms. Enacted in 1988, section 790.33(2) provides, as a limited exception to Florida's local preemption law, that any county may adopt an ordinance requiring a waiting period of up to, but not exceeding, three working days between the purchase and delivery of any retail sale of a handgun, excluding gun collector shows or exhibits, and gun shows. Section 790.33(2) appears to have been superseded by a 1990 amendment to the Florida Constitution which mandates a three-day waiting period. See also section 790.0655 which provides that a violation of the waiting period amendment is a felony. In 1998, Florida voters, by referendum, further amended Article VIII, § 5 of the Florida Constitution to allow counties to require, by ordinance, a three to five-day waiting period, excluding weekends and legal holidays, and criminal history records checks on all firearms sales occurring within the county. Concealed weapons permit holders are not subject to any of these background check or waiting period provisions. Article VIII, § 5(b); Fla. Stat. § 790.33(2)(d). Florida prohibits any legal actions against a firearms or ammunition manufacturer, distributor or dealer, or firearms trade association, on behalf of a county, municipality, special district, or any other political subdivision or agency of the state, for damages, abatement, or injunctive relief resulting from or arising out of the lawful design, marketing, distribution, or sale of firearms or ammunition to the public. Section 790.331(2). Moreover, a county, municipality, special district, or other political subdivision or agency of the state may not sue for or recover from a firearms or ammunition manufacturer, distributor or dealer, or firearms trade association, damages, abatement, or injunctive relief in any case that arises out of or results from the lawful design, marketing, distribution, or sale of firearms or ammunition to the public. Section 790.331(3). Actions against a firearms or ammunition manufacturer, distributor, or dealer are permitted for:
Section 870.043 authorizes certain public officials, including county sheriffs and certain designated city officials, to declare a state of emergency if certain conditions are met. During a declared state of emergency, the following acts are prohibited:
However, nothing in sections 870.01-870.06 may be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in a criminal act. Similarly, section 252.36, which enumerates the powers of the Governor to address emergencies, states that he or she may “suspend or limit the sale, dispensing, or transportation of … firearms, explosives, and combustibles. However, nothing contained in sections 252.31-252.90 may be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in the commission of a criminal act.” The Florida Legislature has occupied the whole field of regulation of firearms and ammunition use at sport shooting and training ranges, including the environmental effects of projectile deposition at such ranges. Section 790.333(8). Florida law provides that any sport shooting or training range shall be immune from lawsuits brought by political subdivisions for any claims associated with the use, release, placement, deposition, or accumulation of any projectile on or under that range, or any other property over which the range has a legal right of use, if the range owner or operator has made a good faith effort to comply with the appropriate environmental management practices. Section 790.333(5)(a); see also section 790.333(4). Nothing in this law is intended to impair or diminish the private property rights of owners of property adjoining a sport shooting or training range. Section 790.333(5)(b). The Attorney General of Florida has interpreted these provisions to mean that a county may enforce existing zoning and land use regulations against a proposed sports shooting range; however, no newly created or amended zoning or land use regulations may be enforced against existing ranges. Op. Att’y Gen. Fla. 2008-34, 2008 Fla. AG LEXIS 61. A separate Florida law immunizes any person who operates or uses a sport shooting range from civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from operation or use of the range. Section 823.16. Charter counties in Florida may also preempt city ordinances related to firearms in certain circumstances. See Broward County v. Ft. Lauderdale, 480 So. 2d 631 (Fla. 1985) (holding that a charter county may preempt city regulations regarding handgun sales). |
Georgia |
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Last Updated December 13, 2011 The Georgia General Assembly has declared the regulation of firearms to be an issue of general, statewide concern. Ga. Code Ann. § 16-11-173(a)(1). The General Assembly has enacted a preemption statute stating that “[n]o county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows; the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms or components of firearms; firearms dealers; or dealers in firearms components.” Section 16-11-173(b)(1). Cities and counties are not preempted from enacting the following:
Section 16-11-173(c), (d), (e). The General Assembly has declared that the lawful design, marketing, manufacture, or sale of firearms or ammunition to the public are not unreasonably dangerous activities and do not constitute a nuisance per se. Section 16-11-173(a)(2). The General Assembly has also reserved to the state the authority to bring suit and the right to recover against any firearms or ammunition manufacturer, trade association or dealer, by or on behalf of any governmental unit for damages, abatement, or injunctive relief resulting from or relating to the lawful design, manufacture, marketing, or sale of firearms or ammunition to the public. Section 16-11-173(b)(2). This does not preclude a political subdivision or local government from bringing an action against a firearms or ammunition manufacturer or dealer for breach of contract or express warranty as to firearms or ammunition purchased by the political subdivision or local government. Id. In Sturm, Ruger & Company v. City of Atlanta, 560 S.E.2d 525 (Ga. Ct. App. 2002), the Court of Appeals of Georgia relied on a broad interpretation of the preemption doctrine in applying former section 16-11-184 (now recodified as section 16-11-173) to dismiss a city’s negligence claim against gun manufacturers, dealers, and trade associations in connection with the design, marketing and distribution of firearms. The court held the lawsuit was preempted in several ways. First, the court held that preemption could be inferred from the comprehensive nature of the state’s regulatory scheme for the distribution and use of firearms, even in the absence of section 16-11-173. As an initial point in its analysis, the court pointed out that Ga. Const. art. I, § I, para. VIII (providing a state right to “keep and bear arms”) gives the power to prescribe the manner in which arms may be borne only to the state’s General Assembly. Sturm, Ruger, 560 S.E.2d at 529. The court held that the state had exercised that power by enacting a regulatory scheme for the distribution and use of firearms. Id. Section 16-11-173(a)(2), (b)(2) had been added after the lawsuit was filed to reserve to the state the authority to file suit in connection with these activities. However, the comprehensive nature of the state’s firearms regulations meant that the lawsuit was preempted even in the absence of the amending provisions. Id. Second, the court held that Georgia expressly preempted local regulation of firearms pursuant to subsection 16-11-173(b)(1), and this preemption applied to the lawsuit. Sturm, Ruger, 560 S.E.2d at 530. The court rejected the argument that a lawsuit to recover damages was not within the fields preempted by the statute and was not a form of regulation. “The practical effect of the preemption doctrine is to preclude all other local or special laws on the same subject. [Citations omitted.] That the City has filed a lawsuit rather than passing an ordinance does not make this any less a usurpation of State power. The City may not do indirectly that which it cannot do directly.” Id. See the Georgia Immunity Statutes section for further information about the lawsuit. More recently, in GeorgiaCarry.Org, Inc. v. Coweta County, 655 S.E.2d 346 (Ga. Ct. App. 2007), the Court of Appeals of Georgia held that section 16-11-173 preempted a county ordinance prohibiting firearms on county-owned property. However, in GeorgiaCarry.Org, Inc. v. City of Roswell, 680 S.E.2d 697 (Ga. Ct. App. 2009), the Court of Appeals of Georgia upheld an ordinance that stated that carrying a firearm at a “public gathering” was prohibited “pursuant to” a state law. State law at that time did, in fact, include a provision prohibiting carrying a firearm at a public gathering. The court upheld the ordinance because it created no independent local violation, but merely put the public on notice of the state law. Id. A local government may subject firearms dealers, shooting galleries and firearm ranges to a regulatory fee “only if the local government customarily performs investigation or inspection of such businesses or practitioners of such profession or occupation as protection of the public health, safety, or welfare.” Ga. Code Ann. § 48-13-9(a), (b)(6), (11). A local government imposing such a regulatory fee must determine the amount of the fee by one of six methods prescribed by statute. Section 48-13-9(e). Local governments may not retroactively apply regulations or ordinances relating to noise control, noise pollution, or noise abatement “to prohibit conduct at a sport shooting range, which conduct was lawful and being engaged in prior to the adoption or enactment of” such regulations or ordinances. Section 41-1-9(d). Section 36-60-24 provides that the governing authority of a county or municipal corporation shall not prohibit the sale of products listed in section 25-10-1(b), which include “toy pistol paper caps in which the explosive content averages 0.25 grains or less of explosive mixture per paper cap or toy pistols, toy cannons, toy canes, toy guns, or other devices using such paper caps,” or “ammunition consumed by weapons used for sporting and hunting purposes.” |
Hawaii |
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Last Updated September 23, 2011 Article VIII, § 2 of the Hawaii Constitution provides that "[e]ach political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law." Section 6 of Article VIII provides that nothing contained in the Article shall "limit the power of the legislature to enact laws of statewide concern." In addition, Hawaii Revised Statutes Annotated § 46-1.5(13) provides that:
There are no statutes or cases addressing whether local governments are authorized to regulate firearms in Hawaii. The Supreme Court of Hawaii has set forth the general framework for determining when state law preempts local law. In Richardson v. City and County of Honolulu, 868 P.2d 1193, 1207-08 (Haw. 1994), the court noted that the California Supreme Court had synthesized the general principles governing preemption in Sherwin-Williams v. City of Los Angeles, 844 P.2d 534, 539-40 (Cal. 1993), as follows:
The Richardson court concluded that a municipal ordinance may be preempted by state law if: "(1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law." Richardson, 868 P.2d at 1209. See the Hawaii Immunity Statutes section for information regarding lawsuits by local governments against the gun industry. |
Idaho |
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Last Updated October 7, 2011 Under article XII, § 2 of the Idaho Constitution, "[a]ny county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws." However, article I, § 11 of the Idaho Constitution prohibits any laws imposing "licensure, registration or special taxation on the ownership or possession of firearms or ammunition." Moreover, in 2008, Idaho enacted Idaho Code § 18-3302J, which announces “the legislature’s intent to wholly occupy the field of firearms regulation within this state.” That section explains that “uniform laws regulating firearms are necessary to protect the individual citizen’s right to bear arms.” Section 18-3302J(2) states:
However, a county may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within its boundaries, so long as these ordinances do not apply to or affect:
Similarly, a city may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within its boundaries so long as these ordinances do not apply to or affect:
In addition, section 18-3302J does not affect:
The provisions of section 18-3302J are declared to be severable. Section 18-3302J(6). Section 18-3302(6) provides that a city, county or other political subdivision cannot modify the requirements for the issuance of a license to carry concealed weapons, nor shall any political subdivision ask a concealed weapons license applicant to voluntarily submit any information not required in section 18-3302. Despite the enactment of sections 18-3302(6) and 18-3302J, section 50-308 has not been repealed. That provision states that cities have the power "to regulate, prevent and punish for the carrying of concealed weapons." During a state of emergency, neither the governor nor any agency of any governmental entity or political subdivision of the state shall impose restrictions on the lawful possession, transfer, sale, transport, storage, display or use of firearms or ammunition. Section 46-1008(7). There are no cases interpreting the scope of sections 18-3302(6), 18-3302J, 46-1008(7) or 50-308. Sport Shooting Ranges Local law is preempted and local governments do not have authority to establish or enforce noise standards on outdoor sport shooting ranges more restrictive than the standards in sections 67-9101 through 67-9105 (concerning sport shooting ranges owned by the state or a state agency for public use). Section 55-2605. A local government may not treat any action that does not constitute a “substantial change in use” as a violation of a local zoning ordinance, nor shall the undertaking of any such action cause an outdoor sport shooting range to be in violation of any zoning ordinance. Id. Section 55-2604(5) lists actions that do not constitute a “substantial change in use.” A local unit of government may regulate noise produced as a result of a substantial change in the use of the range. Section 55-2603(2). A person who operates or uses a sport shooting range shall not be subject to civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from the operation or use of the range if the range was established, constructed or operated prior to the implementation of any noise control laws, ordinances, rules or regulations, or if the range is in compliance with any noise control laws, ordinances, rules or regulations that applied to the range and its operation at the time of establishment, construction or initial operation of the range. Section 55-2601. Rules or regulations adopted by a state or local department or agency for limiting levels of noise in terms of decibel level which may occur in the outdoor atmosphere shall not apply to a sport shooting range. Section 55-2601(2). A municipal noise control ordinance may not require or be applied so as to require a sport shooting range to limit or eliminate shooting activities that have occurred on a regular basis at the range prior to the enactment of the ordinance. Section 55-2601(3). Except in specified circumstances, a person may not maintain a nuisance action for noise against a shooting range located in the vicinity of that person's property. Section 55-2602. However, a local unit of government may generally regulate the location and construction of a sport shooting range. Section 55-2603(1). Sections 55-2601 through 55-2606 do not apply to outdoor sport shooting ranges owned by the state or a state agency for public use. Section 67-9102(1). (Noise standards for these ranges are established by sections 67-9101 through 67-9105.) Local law is preempted and local governments do not have authority to regulate the operation and use of these ranges, nor do they have authority to establish noise standards for these ranges, just as for other sport shooting ranges. Section 67-9105. A person may not maintain a nuisance action for noise against one of these ranges if it is in compliance with sections 67-9101 through 67-9105. Section 67-9103. A new use of property in the vicinity of one of these ranges does not give rise to a right to maintain a nuisance action for noise against the range. Section 67-9104. |
Illinois |
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Last Updated September 20, 2010 The Illinois Legislature grants broad authority to municipalities to regulate firearms and ammunition. State law provides that “[t]he provisions of any ordinance enacted by any municipality which requires registration or imposes greater restrictions or limitations on the acquisition, possession and transfer of firearms than are imposed by this Act [which comprehensively regulates firearms], are not invalidated or affected by this Act." 430 Ill. Comp. Stat. 65/13.1. "Municipality" is defined to include cities, villages or incorporated towns, but not townships, counties or park districts. 65 Ill. Comp. Stat. 5/1-1-2(1). The Illinois Constitution grants home rule units broad authority to “exercise any power and perform any function pertaining to its government and affairs, including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare….” Ill. Const. Art. VII, § 6(a). The only limits on a home rule unit’s autonomy are those imposed by the Constitution, or by the legislature exercising its authority to preempt home rule where it specifically declares its exercise to be exclusive. Ill. Const. Art. VII, § 6(i). A “home rule” unit is defined as a “County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000.... Other municipalities may elect by referendum to become home rule units.” Ill. Const. Art. VII, § 6(a). In June 2010, the U.S. Supreme Court held that the Second Amendment applies to state and local governments. McDonald v. Chicago, 130 S. Ct. 3020 (2010). In so ruling, the Court reversed a Seventh Circuit decision that affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park, Illinois. This right, as first delineated in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), guarantees an individual right to possess a firearm in the home for self-defense. The McDonald decision effectively rendered unconstitutional handgun possession bans in Chicago, Oak Park and other Illinois communities to the extent their bans restricted gun possession in the home for self-defense (Chicago amended its laws accordingly in July 2010). Local laws that do not burden the right are constitutional, and the decisions below discussing local regulatory authority generally are not impaired by the McDonald ruling. In Kalodimos v. Village of Morton Grove, 470 N.E.2d 266 (Ill. 1984), the Supreme Court of Illinois upheld a municipal ordinance banning handguns as a permissible exercise of the city’s home rule and police powers. The court emphasized that when the state enacts statutes that relate to the ownership, possession or sale of firearms, it does not preempt the field of firearms regulation, but permits local laws further regulating or restricting firearms. Id. at 276; see also City of Chicago v. Taylor, 774 N.E.2d 22, 28 (Ill. App. Ct. 2002) (upholding Chicago's firearms registration ordinance as a permissible exercise of the City's home rule powers, “since the ordinance clearly pertains to the City's interest in reducing firearm-related deaths and injuries,” and concluding that the ordinance was not preempted by any state regulation). In Illinois Sporting Goods Ass’n v. County of Cook, 845 F.Supp. 582 (N.D. Ill. 1994), a federal court heard a challenge to the firearms dealers licensing provisions of Cook County’s Firearms Dealer's License and Assault Weapons Ban Ordinance (No. 190061). In denying the challengers’ attack on the provisions based on Art. VII, § 6(a) of the Illinois Constitution (which grants to home rule units like Cook County the ability to exercise any and all powers to protect the health, safety, morals and welfare of the members of its community), the court noted that “reducing firearm violence among children” is an important governmental interest that the ordinance was designed to serve, and that the challengers failed to show that the licensing procedure constituted an “unreasonable method” to reduce firearm violence. Illinois Sporting Goods Ass’n, 845 F.Supp. at 587-88. Cook County is currently the only home rule county in Illinois. See Illinois Association of County Board Members, About Illinois Counties, at http://www.ilcounty.org/news/22-2.html (last visited Sept. 20, 2010). A county which is not a home rule unit can exercise only the powers expressly delegated by the legislature or those that arise by necessary implication from expressly delegated powers. See Bruer v. Livingston County Board of Zoning Appeals, 383 N.E.2d 1016, 1018 (Ill. App. Ct. 1978), citing Tavern Owners Association of Lake County, Illinois, Inc. v. County of Lake, 367 N.E.2d 748 (Ill. App. Ct. 1977). Moreover, municipal ordinances can impose regulations beyond those enacted by the county. The Illinois Constitution states that “[i]f a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction.” Ill. Const. Art. VII, § 6(c). The Illinois Counties Code expressly delegates to counties only regulation of the discharge of firearms in unincorporated residential areas. 55 Ill. Comp. Stat. 5/5-1117. Illinois law provides that every municipality must submit to the Illinois Department of State Police (DSP) a copy of every ordinance adopted that regulates the acquisition, possession, sale, or transfer of firearms within 30 days after adoption. 430 Ill. Comp. Stat. 65/13.3. |
Indiana |
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Last Updated September 28, 2011 Counties, municipalities and townships are defined as local government "units" by Indiana law. Ind. Code Ann. § 36-1-2-23. Pursuant to section 36-1-3-2, "[t]he policy of the state is to grant units all the powers that they need for the effective operation of government as to local affairs." In 2011, Indiana amended its broad firearms preemption statute making it even more restrictive than the previous version. The new law states that a political subdivision may not regulate firearms, ammunition, or firearm accessories or the "ownership, possession, carrying, transportation, registration, transfer, and storage" or "commerce in and taxation of" these items. Section 35-47-11.1. (Firearm accessory is defined as a device that enables the wearing or carrying of a firearm on the person; or the storage or mounting of a firearm on a conveyance; or a device that is intended to be inserted or affixed onto a firearm to improve its function. Section 35-47-1-5.1.) While the former law allowed local laws that were in effect prior to January 1, 1994 to stand; the current law declares all previous laws addressing the items and activities above to be void. Id. There are limited exceptions. For example, an employer may restrict an employee from carrying firearms and ammunition in the course of his or her official duties. Id. Local governments may enact zoning or business ordinances that apply to firearms businesses so long as the ordinance also applies in the same way to similar businesses. However, a local government may not, with one limited exception, prohibit the sale of firearms within a specified distance from a school or other land use. Id. Unlike the former law, the new law does not permit local governments from restricting concealed weapon permit holders from carrying firearms in local government-owned buildings (except those that house courtrooms). Governments may only restrict non-permit holders from carrying in these buildings if metal detection devices and law enforcement officers are at every public entrance to inspect people and bags. Id. Section 35-47-11.1 also provides that a person or organization who is adversely affected by local government action that impacts firearms in violation of the section may sue for damages (including liquidated damages in an amount three times the attorney’s fees), court costs and attorney’s fees. |
Iowa |
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Last Updated November 2, 2011 Iowa has enacted a broad preemption statute. Iowa Code § 724.28 prohibits political subdivisions (including cities, counties and townships) from regulating the ownership, possession, legal transfer, lawful transportation, registration, or licensing of firearms when otherwise lawful under state law. The statute also declares void any ordinance existing on or after April 5, 1990 regulating firearms in violation of the statute. While there are no cases examining the scope of section 724.28, the Iowa Attorney General has opined that section 724.28 does not restrain local governments from exercising home rule power to restrict the possession of firearms in buildings owned or directly controlled by the local government. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6. The Attorney General’s opinion was issued in response to a state legislator’s question regarding the validity of a West Burlington, Iowa ordinance restricting possession of firearms by non-law enforcement or military personnel within municipal buildings. After engaging in a review of Iowa law regarding the home rule of municipalities, the Attorney General stated that section 724.28 does not preempt municipalities or counties from "enacting and enforcing limitations upon the possession of weapons which are narrowly limited to buildings owned or directly controlled by the political subdivision." Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *2. Because section 724.28 does not limit the ability of a property owner to manage property owned or directly controlled by her or him, and Iowa law does not preclude a private business owner from prohibiting persons from bringing concealed weapons onto the owner’s business premises, the Attorney General found that section 724.28 must be interpreted consistently to permit a municipality to prohibit persons from bringing concealed weapons onto premises owned or directly controlled by the municipality. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *18. Thus, the city could enforce its ordinance against concealed weapons permit holders as well under section 724.4. The Attorney General cautioned, however, that the authority of a municipality to regulate weapons is narrowly limited to property owned or directly controlled by the municipality. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *18-*19. In addition, the Attorney General warned that Iowa courts would likely find a local ordinance imposing a jurisdiction-wide restriction upon the possession or transportation of a weapon preempted by section 724.28. Id. Finally, the Attorney General noted that section 724.28 does not affect the authority of Iowa’s judicial branch to install metal detectors or other devices and restrict the possession of weapons in county court houses under the judiciary’s inherent power to ensure that state courts function safely and efficiently, nor does section 724.28 address the authority of state government to prohibit the possession of weapons in state-owned or controlled buildings. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *7, n2. |
Kansas |
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Last Updated April 1, 2011 Kansas Statutes Annotated § 12-16,124(a) provides that:
Section 75-7c17(a) provides that:
Pursuant to Kansas Statutes Annotated § 12-16,124(b), cities and counties may:
Cities, counties, and political subdivisions may also restrict or prohibit concealed weapons licensees and persons exempt from the requirement of a concealed weapons license from carrying a concealed handgun within a building or buildings of such entity, provided that the premises are posted in accordance with rules and regulations adopted by the attorney general as premises where carrying a concealed handgun is prohibited. Kan. Stat. Ann. § 75-7c10(b). Prior to the enactment of section 12-16,124, the Supreme Court of Kansas relied on the home rule powers of cities in Kansas under art. XII, § 5 in upholding a local ordinance prohibiting carrying a firearm on the person in public. Junction City v. Lee, 532 P.2d 1292, 1296 (Kan. 1975). The Kansas Legislature has immunized firearm manufacturers and dealers from certain civil suits by local governments. Kan. Stat. Ann. § 60-4501(a) states:
Section 60-4501(b) provides:
In 2008, Kansas enacted a law prohibiting any officer or employee of the state or any political subdivision thereof, member of the Kansas national guard in the service of the state, or any person operating pursuant to or under color of state law, receiving state funds, under control of any official of the state or political subdivision thereof, or providing services to such officer, employee or other person, from doing the following during a declared official state of emergency:
2008 Kan. Sess. Laws 97 § 1. Section 58-3223 limits the local regulation of sport shooting ranges. Section 58-3223(a) provides that a sport shooting range that is not in violation of state law at the time of the adoption of an ordinance or resolution that regulates the range shall be permitted to continue in operation even if operation of the range at a later date does not conform to the new ordinance or resolution or amendment to an existing ordinance or resolution. In addition, a sport shooting range in existence on the effective date of section 58-3223 (July 1, 2001) in compliance with generally accepted operation practices, even if not in compliance with an ordinance or resolution of a local unit of government, shall be permitted to do the following within its preexisting geographic boundaries:
Section 58-3223(b). Section 58-3224 states that sections 58-3221 – 58-3225 (governing sport shooting ranges) shall not prevent a local unit of government from regulating the location and construction of a sport shooting range "except as otherwise provided." No governmental entity may take title to property which has a permanently located and improved sport shooting range, by condemnation, eminent domain or similar process when the proposed use of said property would be for shooting-related activities or recreational activities or for private or commercial development. Section 58-3224(b). This provision does not limit governmental exercise of eminent domain or easement necessary for infrastructure additions or improvements, such as highways, waterways or utilities. Id. |
Kentucky |
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Last Updated January 29, 2010 Kentucky law preempts several types of local firearms ordinances. In 1984, the state legislature enacted Kentucky Revised Statutes Annotated § 65.870, which states:
In 1993, the Kentucky Attorney General was asked if section 65.870 would prohibit a city ordinance regulating the registration of firearms and requiring notification of the sale of firearms to the city. In opining that local municipal firearms ordinances are precluded by the statute, the Attorney General stated "[t]he language of...[section] 65.870 is unambiguous. No exceptions to the positive terms of this statute are set forth in the statute. Where the Kentucky General Assembly makes no exceptions to the positive terms of a statute, it is presumed to have intended to make none." 93 Ky. Op. Att'y Gen. 71, 1993 Ky. AG LEXIS 179, at *2. In 1999, the Attorney General was asked whether an ordinance regulating concealable firearms was barred by section 65.870. The Attorney General opined that section 65.870:
99 Ky. Op. Att'y Gen. 10, 1999 Ky. AG LEXIS 211, at *1-*2. In 2004, the Kentucky Legislature enacted Ky. Rev. Stat. Ann. § 100.325, which provides that local governments may not "utilize the zoning process to prohibit a federally licensed firearms manufacturer, importer, or dealer from locating at any place within the jurisdiction at which any other business may locate," nor adopt any regulations that "could be reasonably construed to solely affect federally licensed firearms manufacturers, importers, or dealers." This section appears to be a response to Peter Garrett Gunsmith, Inc. v. City of Dayton, 98 S.W.3d 517, 520 (Ky. Ct. App. 2002), in which the Court of Appeals of Kentucky held that section 65.870 did not prohibit cities from adopting zoning ordinances that restrict the location of gun shops. Local regulatory authority in regard to carrying concealed weapons is also limited by section 237.110(19), which provides that:
However, in 1996, Kentucky enacted section 237.115, which references Kentucky's carrying concealed weapons licensing law, section 237.110. Section 237.115(1) provides that the licensing law may not be construed to limit, restrict or prohibit the right of a unit of a state, city, county, urban-county, or charter county government to prohibit the carrying of concealed weapons by state licensees in those portions of a building actually owned, leased, or occupied by that unit of government. Moreover, section 237.115(2) specifically authorizes the legislative bodies of city, county and urban-county governments to "prohibit or limit" the carrying of concealed deadly weapons by state licensees in those portions of a building actually owned, leased, or controlled by that government unit. Section 237.115(2). Nevertheless, such ordinances "shall exempt any building used for public housing by private persons, highway rest areas, firing ranges, and private dwellings owned, leased, or controlled by that unit of government from any restriction on the carrying or possession of deadly weapons." Id. This grant of authority is also explicitly limited by section 527.020 (which lists classes of people, such as commonwealth attorneys, judges, sheriffs, etc., who may carry concealed firearms anywhere but detention facilities). Id. The Kentucky Attorney General has interpreted section 237.115(2) to mean that "a local government, without otherwise violating the statutory prohibition contained in [section 65.870], may prohibit or limit the carrying of concealed deadly weapons in buildings or portions of buildings owned, leased, or controlled by a county." 96 Ky. Op. Att'y Gen. 39, 1996 Ky. AG LEXIS 79, at *5. However, a county judge/executive (the chief elected official of counties in Kentucky) does not qualify as a "legislative body" and thus cannot regulate the carrying of concealed deadly weapons in the designated areas. That authority instead falls to the fiscal court of a county because the fiscal court is the county's legislative body. Id. at *6-*7. In addition, Kentucky's concealed weapons licensing law, section 237.110, may not be construed to limit, restrict or prohibit the right of public or private universities, colleges, and other postsecondary education facilities (including technical schools and community colleges) to prohibit the carrying of concealed weapons on their properties. Section 237.115(1). A regulation imposed by a state or local governmental unit or educational entity pursuant to section 237.115(1) or (2) may not apply to people listed in section 527.020, such as commonwealth attorneys, judges, and sheriffs. Section 237.115. These people may carry concealed firearms anywhere but detention facilities. Section 527.020. Unless otherwise provided by state or federal law, however, no criminal penalty shall be imposed for carrying a concealed firearm with a permit at any location at which an unconcealed firearm may constitutionally be carried. Section 237.115(3). Finally, no person, unit of government, or governmental organization may, during a period of disaster or emergency or at any other time, have the right to revoke, suspend, limit the use of, or otherwise impair the validity of the right of any person to purchase, transfer, loan, own, possess, carry, or use a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument. Section 237.104. No person, unit of government, or governmental organization may, during a period of disaster or emergency or at any other time, take, seize, confiscate, or impound a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument from any person. Id. |
Louisiana |
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Last Updated September 13, 2010 Louisiana Revised Statutes Annotated § 40:1796 provides:
There is no relevant case law interpreting section 40:1796. Pursuant to section 33:120, parishes (governmental units akin to counties) in Louisiana are "authorized to zone in order to prohibit, restrict, or regulate hunting and the shooting of firearms in the heavily populated areas," as determined by parish governing authorities. In addition, municipalities with a population in excess of 425,000 may initiate firearms buyback programs, subject to certain state guidelines. Section 33:4879. Finally, section 33:1236 provides that parish governing authorities may regulate the use of air rifles within the limits of the parish, which includes the authority to make necessary rules and regulations and provide penalties for violations. |
Maine |
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Last Updated July 17, 2010 The Maine Legislature has adopted an express preemption statute, Maine Revised Statutes Annotated title 25, § 2011, which provides:
The adoption of title 25, § 2011 in 1989 rendered invalid many local ordinances regulating firearms. See, e.g., Hilly v. City of Portland, 582 A.2d 1213, 1215 (Me. 1990) (holding that section 2011 preempted a Portland ordinance prohibiting the carrying of guns at night). In addition to affecting regulations by cities and counties, section 2011 preempts firearms regulations by municipal agencies or authorities. See Doe v. Portland Housing Authority, 656 A.2d 1200, 1203-04 (Me. 1995) (finding that section 2011 preempted a municipal housing authority's leasing provision which prohibited the possession of firearms on the leased premises). Title 12, § 13201, which relates to inland fisheries and wildlife, states that while a “municipality or political subdivision of the State may not enact any ordinance, law or rule regulating the hunting, trapping or fishing for any species of fish or wildlife,” this restriction on local power does not prohibit the enactment of “any ordinance generally regulating the discharge of firearms in a municipality or any part of a municipality.” Pursuant to title 30-A, § 3007(5), any municipality adopting or amending a firearm discharge ordinance shall consult with the Maine Department of Inland Fisheries and Wildlife during the process. Furthermore, the area(s) in which the discharge of firearms is prohibited under an ordinance must be described using "clearly defined physical boundaries" as points of reference. Id. Maine also prohibits certain civil actions by municipalities against firearms and ammunition manufacturers under Tit. 30-A, § 2005. See the Maine Immunity Statutes/Manufacturer Litigation section for further information. |
Maryland |
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Last updated May 10, 2011 Maryland prohibits local governments from regulating the purchase, sale, taxation, transfer, manufacture, repair, ownership, possession and transportation of handguns, rifles, shotguns and ammunition. Md. Code Ann., Crim. Law § 4-209(a). Under section 4-209(b), local governments may, however, regulate the purchase, sale, transfer, ownership, possession and transportation of such firearms and ammunition with respect to minors, defined as those under the age of 18 (see Md. Ann. Code art. 1, § 24); law enforcement officials of the local government; and activities in or within 100 yards of "a park, church, school, public building, and other place of public assembly." Section 4-209(d) also allows local governments to regulate the discharge of firearms, but not at "established ranges." Two Attorney General opinions express the view that certain local ordinances fall within the exceptions of section 4-209(b) and are likely not preempted. See 82 Op. Att'y Gen. 84 (1997), 1997 Md. AG LEXIS 5 (local ordinance requiring the sale of trigger locks with handguns was within the "minors" exception to the preemption statute); and 76 Op. Att'y Gen. Md. 240 (1991), 1991 Md. AG LEXIS 64 (ordinance generally prohibiting any person from leaving a loaded or unloaded firearm in close proximity to fixed ammunition in any location where the person knows or reasonably should know that an unsupervised minor may gain access to the firearm was "unquestionably" legislation "with respect to minors"). Other Maryland laws also preempt local action. The Court of Appeals of Maryland has found that uncodified Chapter 13, Section 6 of the Acts of 1972, which prohibits local regulation of the wearing, carrying, and transporting of handguns, preempted a county ordinance which attempted to regulate the sale of ammunition and the wearing, carrying or transporting of loaded handguns. Montgomery County v. Atlantic Guns, 489 A.2d 1114, 1118 (Md. 1985). In addition, under Md. Code Ann., Pub. Safety § 5-101(p), handguns and assault weapons are defined as "regulated firearms." Maryland preempts the right of any local jurisdiction to regulate the possession (§ 5-133(a)), sale (§ 5-104), or transfer (§ 5-134(a)) of these firearms. These code sections have no exceptions. Nevertheless, the Attorney General, when interpreting the former versions of these sections (substantially similar to the current versions), opined that the exceptions to preemption (concerning minors, law enforcement, parks, churches, etc.) should be given effect. 76 Op. Att'y Gen. 240 (1991), 1991 Md. AG LEXIS 64. Maryland law provides that political subdivisions may not adopt any noise control ordinance, rule or regulation prohibiting trapshooting, skeet shooting or other target shooting activities between the hours of 9 a.m. and 10 p.m. by a shooting sports club in operation as of January 1, 2001. Md. Code Ann., Envir. § 3-105(a)(3). The prohibition on local noise control laws for shooting sports clubs also applies to Allegany, Anne Arundel, Garrett and Washington counties and political subdivisions in those counties for clubs in operation as of January 1, 2005. Section 3-105(a)(4). Allegany, Anne Arundel, Garrett and Washington counties and their political subdivisions may, however, adopt noise control regulations that prohibit target shooting between the hours of 9 a.m. and 10 p.m. by a shooting sports club that the state Department of the Environment determines is not in compliance with environmental noise standards, sound level limits, or noise control rules and regulations as of January 1, 2005. See sections 3-105(a)(4) and 3-401 for additional information. |
Massachusetts |
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Last Updated January 11, 2011 Municipal Regulatory Authority Massachusetts grants regulatory authority to municipalities via the Home Rule Amendment ("Amendment"), Mass. Const. amend. art. II, §§ 1-9 (as amended by Mass. Const. amend. article LXXXIX). The Amendment provides cities and towns with broad regulatory power:
Mass. Const. amend. art. II, § 1. (Please note: the term "general court" in the Massachusetts Constitution and state statutes refers to the Massachusetts state legislature.) The Amendment empowers cities and towns to enact local ordinances that do not conflict with the general laws of Massachusetts. Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 741 N.E.2d 37, 43 (Mass. 2001). The Amendment does not, however, permit localities to criminalize behavior legalized by the legislature. American Motorcyclist Ass'n v. Park Comm'n of Brockton, 592 N.E.2d 1314 (Mass. 1992) (invalidating local regulation banning use of motorcycles because regulation inconsistent with statute giving persons the right to operate motor vehicle). The substance of the Amendment is rooted in Mass. Const. amend. art. II, § 6:
Massachusetts General Laws ch. 43B, § 13, which defines the parameters of a municipality’s powers, is virtually identical in substance to Mass. Const. amend. art. II, § 6. Under the Amendment, municipal actions are presumed valid, and municipalities may undertake any action that is not inconsistent with state law. Connors v. City of Boston, 714 N.E.2d 335 (Mass. 1999). The Massachusetts Supreme Judicial Court has set forth the following guidelines for determining whether a municipal ordinance is inconsistent with state law:
Id. at 337-38. In Town of Amherst v. Attorney General, 502 N.E.2d 128, 130 (Mass. 1986), the Massachusetts Supreme Judicial Court interpreted several provisions of Mass. Const. amend. art. II in the context of a firearms discharge by-law, holding that when a town exercises a right to govern locally, it "exceeds its power only when it passes a by-law inconsistent with the Constitution or laws of the Commonwealth" per Mass. Const. amend. art. II, § 6. In Town of Amherst, the court found that a town by-law prohibiting the discharge of specified firearms within town limits under various circumstances was not inconsistent with state statutes regarding hunting and the safe use of firearms and was therefore valid. Town of Amherst, 502 N.E.2d at 131-32. The Massachusetts Attorney General had disapproved of the by-law on the basis that it constituted an undue restriction of firearm use in a rural town. Id. at 129. The court disagreed, stating that the existence of state law addressing the same subject a local government seeks to regulate does not necessarily result in preemption of local authority. Rather, if the state’s "legislative purpose can be achieved in the face of a local [regulation]...on the same subject, the [local regulation] ... is not inconsistent with the State legislation." Id. at 130 (quoting Bloom v. Worcester, 363 Mass. 136, 156 (Mass 1973)). The court determined that the local law did not frustrate the purpose of state laws regarding hunting and therefore did not conflict with state substantive or procedural laws. Id. at 131. Massachusetts Constitutional amendment art. II, § 7 limits cities and towns from exercising the authority granted in Mass. Const. amend. art. II, §§ 1 and 6 in specified areas unless such authority is granted by the general court as provided for in Mass. Const. amend. art. II, § 8. For example, municipalities are prohibited from providing "for the punishment of a felony or to impose imprisonment as a punishment for any violation of law." Mass. Const. amend. art. II, § 7(6). In addition, Mass. Const. amend. art. II, § 7(2) prohibits cities and towns from levying, assessing or collecting taxes. A city or town may petition the state to enact special legislation pertaining only to that city or town pursuant to Mass. Const. amend. art. II, § 8. Boston’s assault weapon ban is an example of regulation that was enacted through this process. 1989 Mass. Acts 596, §§ 1-7. Finally, under the Amendment, municipalities generally are no longer required to seek authority from the state legislature to impose controls relative to zoning. Baldiga v. Board of Appeals of Uxbridge, 482 N.E.2d 809, 812 n.5 (Mass. 1985). Chapter 40A expressly recognizes local autonomy in dealing with land use and zoning issues. Id. at 812, Zoning Bd. of Appeals of Wellesley v. Ardemore Apts. L.P., 767 N.E.2d 584, 593 n.22 (Mass. 2002). Towns in Massachusetts may, under ch. 40, § 21, "make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits." Specifically, towns may enact ordinances and by-laws "[f]or directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police." Ch. 40, § 21(1). See Brown v. Town of Carlisle, 142 N.E.2d. 891 (Mass. 1957) (holding that ch. 40, § 21(1) permits a local jurisdiction to prohibit the discharge of a firearm on any private property except with the permission of the land owner or legal occupant of the land). County Regulatory Authority Although the Massachusetts Constitution does not grant any explicit power to counties, those counties adopting a charter under ch. 34A, § 15 have the power to "[a]dopt, amend, enforce, and repeal ordinances and resolutions notwithstanding the effect of any referendum conducted prior to the county’s adoption of its charter pursuant to" Chapter 34A. Ch. 34A, § 16(A)(ii). With respect to regulations for the general health, safety and welfare, however, "[c]ities and towns are and shall remain the broad repository of local police power in terms of the right and power to legislate" in these areas. Ch. 34A, § 16(B).
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Michigan |
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Last Updated May 5, 2011 Michigan Compiled Laws Service § 123.1102 provides:
Exceptions to section 123.1102 include local legislation:
In Michigan Coalition for Responsible Gun Owners v. City of Ferndale, 662 N.W.2d 864 (Mich. Ct. App. 2003), the Court of Appeals of Michigan upheld a section 123.1102 challenge to a city ordinance making public buildings gun-free zones. The court stated that a local law is preempted by state law if the state law completely occupies the field the ordinance attempts to regulate, or the ordinance directly conflicts with a state law. Responsible Gun Owners, 662 N.W.2d at 868. The court stated that section 123.1102 demonstrates that, "in effect, state law completely occupies the field of regulation that the Ferndale ordinance seeks to enter" – the carrying or possession of firearms. Responsible Gun Owners, 662 N.W.2d at 872. According to the court, the ordinance would only be allowable if a federal or state law existed which expressly permitted the regulation. Finding no law allowing the Ferndale ordinance, the court determined that the ordinance was preempted by section 123.1102. Id. at 872-874. In Morgan v. United States DOJ, 473 F. Supp. 2d 756 (E.D. Mich. 2007), a federal district court held that a Redford Township zoning ordinance restricting the sale of firearms in a designated residential area was not preempted by section 123.1102. The Bureau of Alcohol, Tobacco, Firearms and Explosives denied renewal of plaintiff's Federal Firearms License over concerns that the township interpreted its residential zoning plan as prohibiting the sale of firearms in premises located in residential districts. Plaintiff sued on several grounds, including that section 123.1102 preempted the zoning restriction. The court found that section 123.1102 does not preempt the zoning restriction because "zoning ordinances of general application merely regulate the location of certain categories of businesses, activities, or dwellings" and do not enter into the substantive field of regulation governing a particular business, activity or dwelling. Morgan, 473 F. Supp. 2d at 770 (emphasis in original). The Michigan Attorney General has opined that local units of government "may not require an applicant for a license to purchase a pistol to provide his or her fingerprints before" issuance of the license. Mich. Op. Att'y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *8. While the opinion was supported by several statutes, the Attorney General found support for this conclusion in section 123.1102 which statute, in the Attorney General's opinion, occupies the "field of firearm regulation." Mich. Op. Att'y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *7. |
Minnesota |
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Last Updated September 9, 2010 Minnesota Statutes § 471.633 expressly preempts all local governments from enacting legislation regulating firearms, ammunition, or their respective components. The legislature has enacted various exceptions to section 471.633. Pursuant to these exceptions, local governments have authority to pass the following types of legislation:
Secondhand and “junk dealers" are persons engaged in the business of buying secondhand goods, including guns, excluding used goods taken as part or full payment for new goods. Section 471.925. School districts are specifically excluded from the preemption found in section 471.633 when school boards or school administrators are regulating school grounds, school facilities, school transportation services, school programs, or the conduct of students at any activities conducted under the direct or indirect supervision or control of the school board or administration. Section 471.634. A school district or entity composed of school districts may not, however, regulate firearms, ammunition or their respective components when possessed or carried by non-students or non-employees, in a manner that is inconsistent with section 609.66, subd. 1d, which generally prohibits possessing, storing, or keeping a firearm while knowingly on school property. Section 609.66, subd. 1d(g). In an unpublished opinion, the Court of Appeals of Minnesota rejected a preemption challenge to a school district's expulsion policy for possession of a dangerous weapon on school property. In re the Expulsion of M.A.L., No. C8-02-739, 2002 Minn. App. LEXIS 1292 (Nov. 26, 2002). In M.A.L., the expelled student argued that the school district's expulsion policy was preempted by Minn. Stat. § 609.66, which makes possession of a dangerous weapon on school property a felony. The student argued that, even though section 471.634 expressly exempts school districts from the firearm preemption statute, the later enactment of section 609.66 impliedly repealed section 471.634 and preempted school districts from regulating the possession of a weapon on school property. The court applied a four-part preemption test originally set out in Mangold Midwest Co. v. Richfield, 143 N.W. 2d 813, 819 (Minn. Ct. App. 1966), a non-firearms case. The test consisted of four questions: 1) What is the subject matter to be regulated?; 2) Has the subject matter been so fully covered by state law as to have become solely a matter of state concern?; 3) Has the legislature, in partially regulating the subject matter, indicated that it is a matter solely of state concern?; and 4) Is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the general populace of the state? The M.A.L. court found that: 1) the subject matter to be regulated was possession of a dangerous weapon on school property; 2) the subject matter was not so fully covered as to render it solely a matter of state concern; 3) the partial regulation of the subject matter did not imply that the legislature intended to eliminate the school district's ability to further regulate the subject matter; and 4) the school district's regulation of the subject matter did not adversely affect the general population. M.A.L., 2002 Minn. App. LEXIS 1292, at *6-*8. The court concluded the school district’s policy was not preempted by state law. Minnesota Statutes § 624.7132, subd. 16 provides that it “shall be construed to supersede municipal or county regulation of the transfer of” handguns. Similar provisions of Minnesota law explicitly supersede all municipal and county regulation on the following topics:
In In re Application of Hoffman, 430 N.W. 2d 210 (Minn. Ct. App. 1988), the Court of Appeals of Minnesota held that a city policy imposing requirements for a handgun permit impermissibly infringed on the statutory directive of section 624.717. Id. at 213. Minnesota law provides that "[n]otwithstanding any other law to the contrary, it shall be lawful for any federally licensed importer, manufacturer, dealer, or collector to sell and deliver firearms and ammunition to a resident of a contiguous state in any instance where such sale and delivery is lawful under" 18 U.S.C. § 921 et seq. Minn. Stat. § 624.71, subd. 1. Similarly, Minnesota law provides that "[n]otwithstanding any other law to the contrary, it shall be lawful for a resident of Minnesota to purchase firearms and ammunition in a contiguous state in any instance where such sale and delivery is lawful under" 18 U.S.C. § 921 et seq. Minn. Stat. § 624.71, subd. 2. A shooting range that operates in compliance with "shooting range performance standards" (adopted by the commissioner of natural resources pursuant to section 87A-.02) must be permitted to do all of the following within its geographic boundaries, under the same or different ownership or occupancy:
A local unit of government with zoning jurisdiction over a shooting range may extend the allowable hours of operation by the issuance of a special or conditional use permit. Id. Furthermore, nothing in sections 87A.01 – 87A.08 shall supersede more restrictive regulation of days and hours of operation imposed by the terms and conditions of ordinances and permits that are in effect on May 28, 2005. Section 87A.08, subd. 1(a). A shooting range that is a nonconforming use shall be allowed to conduct additional shooting activities within the range’s lawful property boundaries as of the date the range became a nonconforming use, provided that the range remains in compliance with the state’s noise restrictions (per § 87A.05) and shooting range performance standards. Section 87A.03, subd. 2. A person who owns, operates, or uses a shooting range that is in compliance with shooting range performance standards is not subject to any nuisance action for damages or equitable relief based on noise or other matters regulated by the shooting range performance standards. Section 87A.06. To the extent consistent with these provisions, a local unit of government with zoning authority jurisdiction over a shooting range may enforce its applicable ordinances and permits. Section 87A.08, subd. 1(a). A state administrative regulation explicitly allows for local firearm use regulations on trails in outdoor recreation areas that are more restrictive than state regulations. Minn. R. 6100.4100. |
Mississippi |
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Last updated October 24, 2011 Mississippi Code Annotated § 45-9-51 states that: "[s]ubject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts or requires the possession, transportation, sale, transfer or ownership of firearms or ammunition or their components." Mississippi Code Annotated § 45-9-53(1) provides that the restrictions under section 45-9-51 do not affect local authority under other laws to require citizens or public employees to be armed for personal or national defense, law enforcement, or another lawful purpose, or to regulate the:
Municipalities and counties may regulate the discharge of firearms. A municipality or county may not apply a discharge-related regulation in an extraterritorial jurisdiction of the municipality or county, or in an area annexed by the municipality or county after September 1, 1981, if the firearm is discharged in a manner not reasonably expected to cause a projectile to cross the boundary of a tract of land, and is a:
Section 45-9-53(1)(b). There is no case law interpreting either Section 45-9-51 or Section 45-9-53. The Mississippi Attorney General has addressed whether a municipal mayor or city council has the authority to ban gun shows in a municipality and at the Mississippi County Fairgrounds. The Attorney General opined that while the mayor in a mayor-council municipality (in this case, Jackson, Mississippi) has the authority to enforce the municipal charter and ordinances, he or she does not have the authority to regulate gun shows by executive order, particularly in light of the provisions of sections 45-9-51 and 45-9-53. Miss. Op. Att’y Gen. 2006-00220 (2006); 2006 Miss. AG LEXIS 200, *4. For similar reasons, the Attorney General has opined that the Jackson City Council has no authority to ban gun shows on the Mississippi State Fairgrounds (located in Jackson). Miss. Op. Att’y Gen. 2006-00220 (2006); 2006 Miss. AG LEXIS 200, *4-*5. According to the Attorney General, the city lacks this power because exclusive authority to regulate the State Fairgrounds rests with the Mississippi Fair Commission, and because sections 45-9-51 and 45-9-53 specifically prohibit municipalities from regulating the possession, transportation, sale, transfer or ownership of firearms and ammunition. Miss. Op. Att’y Gen. 2006-00220 (2006); 2006 Miss. AG LEXIS 200, *4-*5. |
Missouri |
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Last Updated December 19, 2010 Missouri has a comprehensive statute occupying and preempting "the entire field of legislation touching in any way firearms, components, ammunition and supplies to the complete exclusion of any order, ordinance or regulation by any political subdivision of this state." Mo. Rev. Stat. § 21.750.1. The statute further states that all existing or future orders, ordinances or regulations in this field are "null and void except as provided in" Mo. Rev. Stat. § 21.750.3. Missouri Revised Statutes § 21.750.3 allows political subdivisions to:
Missouri Revised Statutes § 21.750.2 reiterates the preemption of all local regulation concerning firearms, stating:
In City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (1994), the Court of Appeals of Missouri rejected a challenge under article 1, § 23 of the Missouri Constitution (the state "right to keep and bear arms") to Mo. Rev. Stat. § 21.750. The court stated:
Joyce, 884 S.W.2d at 35. Mo. Rev. Stat. § 21.750 also precludes political subdivisions from filing certain lawsuits against the firearms industry. Despite the provisions of Missouri Revised Statutes § 21.750, the following specific statutory provisions remain on the books:
Finally, Missouri Revised Statutes § 571.107.1(6) provides that, subject to certain conditions, counties and municipalities may prohibit the carrying of concealed firearms, even by persons permitted to do so under state law, in any building or portion of a building owned, leased or controlled by the county or municipality. Criminal penalties may not be imposed for a violation, but the local laws may deny a violator entrance to the building, order a violator to leave the building and, if an employee of the unit of government, subject a violator to disciplinary measures. Id. |
Montana |
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Last Updated March 25, 2011 Montana removes local authority to regulate all but a few specific fields of firearms regulation. Montana Code Annotated § 45-8-351(1) provides that:
Section 45-8-351(2)(a) provides the following exceptions:
The Montana Attorney General has opined that section 45-8-351(2)(a) allows a city to adopt an ordinance regulating the discharge of firearms, but that the city's ability to enforce that ordinance is limited. 42 Mont. Op. Att'y Gen. 8 (1987), 1987 Mont. AG LEXIS 42, *4-5. Although section 7-4-4306 grants authority to the city to enforce "health" ordinances within five miles of the city limits, the Attorney General stated that the city's ordinance regulating the discharge of firearms does not qualify as a "health" ordinance, and therefore the city cannot enforce it in that area. Id. at *6-8. Nevertheless, the Attorney General found that the city can enforce the ordinance pursuant to section 7-32-4302, which grants the city the power to prevent and punish disorderly conduct within three miles of the city limits. Id. at *8-9. Section 45-8-351(2)(b) specifically denies local governments the power to prohibit the display of firearms at shows or other public occasions by collectors and others, and to prohibit the transportation of firearms through any jurisdiction or in airports. Additionally, section 7-1-111(9) prohibits local governments with self-government powers from exercising any power that "applies to or affects the right to keep or bear arms" except regulation of the carrying of concealed weapons. Section 7-1-111(9) was enacted in response to the decision of the First Judicial District Court of Montana, Lewis and Clark County in City of Helena v. Yetter, 1993 Mont. Dist. LEXIS 172 (1993). There the court had held that section 45-8-351 does not restrict the powers of a self-governing city because it does not "specifically state that it applies to local governments with self-government powers." Id. at *2. A local government has self-government powers if it has adopted a self-government charter, which allows the unit to exercise any power not prohibited by the state's constitution, laws, or the charter itself. Mont. Const. art. XI, § 6. There are no other published cases interpreting or applying Montana Code Ann. §§ 45-8-351 or 7-1-111(9). Section 76-9-102 states that standards adopted by a state agency or unit of local government to limit levels of noise that may occur in the outdoor atmosphere or concerning pollution by lead, copper, or brass deposition may not apply to shooting ranges. Section 76-9-103 states that the state laws concerning planning, master plans, or comprehensive plans may not be construed to authorize an ordinance, resolution, or rule that would:
Section 76-9-104 also prohibits a "planning district growth policy, recommendation, resolution, rule or zoning designation" that would regulate shooting ranges in the aforementioned ways. A unit of local government may not prevent the operation of an established shooting range unless the range presents a clear and provable safety hazard to the adjacent population, in which case the range may be suspended from operation if the range operators are afforded reasonable notice and opportunity to respond and reasonable opportunity to correct any safety defects. Section 76-9-105. An established shooting range may be relocated, however, if all of the following conditions are met:
Id. Section 7-5-2109, which generally authorizes the governing body of a county to regulate littering by ordinance, states that any such ordinance "does not apply to lead, copper, or brass deposits directly resulting from shooting activities at a shooting range." While section 7-5-2111 authorizes the governing body of a county to regulate "conditions that contribute to community decay," section 7-5-2110 states that "community decay" may not be construed or defined to apply to normal activities at a shooting range. Nevertheless, "[n]othing in [section 7-5-2111] or 7-5-2110 may be construed to abrogate or affect the provisions of any lawful ordinance, regulation, or resolution that is more restrictive than the provisions of [section 7-5-2111] or 7-5-2110." Section 7-5-2111(4). Finally, section 45-8-111 states that "[n]oises resulting from the shooting activities at a shooting range during established hours of operation are not considered a public nuisance." Section 7-33-4206 authorizes city and town councils to regulate or prohibit the use or selling of toy pistols and guns within the city or town. Montana Code Ann. § 7-1-115 restricts the ability of local governments to bring suit against a firearms or ammunition manufacturer, trade association, or dealer. Please see the Montana Immunity Statutes section for further details. |
Nebraska |
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Last Updated April 22, 2010 Nebraska recently removed local authority to regulate firearms in certain areas. Local governments may no longer regulate the carrying of concealed handguns in a manner inconsistent with the state’s Concealed Handgun Permit Act. Localities also may not regulate certain aspects of shooting ranges. In Nebraska, a series of statutes grant explicit, but limited, authority to local jurisdictions to regulate firearms:
Section 69-2401 provides that "[t]he state has a valid interest in the regulation of the purchase, lease, rental, and transfer of handguns." Sections 69-2401 through 69-2425 require, among other things, that a handgun transferee either undergo a background check or obtain a handgun certificate before the transfer. Some local regulation may be valid notwithstanding these requirements, as section 69-2425 provides that "[a]ny city or village ordinance existing on September 6, 1991 [the date the legislation became effective], shall not be preempted by sections 69-2401 to 69-2425." Nebraska generally authorizes cites with over 300,000 inhabitants to make ordinances:
Neb. Rev. Stat. § 14-102.01. Similar provisions exist governing cities with less than 300,000 inhabitants. (For cities with between 100,000 and 300,000 inhabitants, see section 15-263; for cities with between 5,000 and 100,000 inhabitants, see section 16-246; for cities with between 800 and 5,000 inhabitants, see section 17-505.) There are no cases addressing preemption of local firearms regulation by the state. The general rule in Nebraska is that state law preempts a local law in three instances: 1) when the state explicitly conveys its intention that a law preempts local laws on the same subject; 2) when the state’s intention to preempt local law is implied by a comprehensive scheme of legislation on a particular subject; also known as "field preemption" and 3) where the local law is inconsistent with state law. State ex rel. City of Alma v. Furnas County Farms, 667 N.W.2d 512, 522-23 (Neb. 2003). Nebraska's Attorney General has opined that the state Concealed Handgun Permit Act, authorizing individuals to obtain permits to carry concealed handguns, preempts local ordinances banning the concealed carrying of handguns within their jurisdictions, at least as such ordinances would apply to state permit holders. Op. Att’y Gen. 09001 (Jan. 18, 2009), 2009 Neb. AG LEXIS 1, at *19-*20. The Attorney General also has opined that a city or village ordinance, such as one currently in effect in Omaha, that requires the registration of a handgun in order to own or possess it but that does not exempt state concealed handgun permit holders is "null and void" as to its applicability to such permit holders. Op. Att’y Gen. 10008 (Mar. 26, 2010), 2010 Neb. AG LEXIS 6, at *13-*14. Nebraska prohibits local governments from regulating certain aspects of shooting ranges. State law provides that any shooting range in existence as of the effective date of the Nebraska Shooting Range Protection Act (August 30, 2009) may continue to operate as a shooting range notwithstanding any law, rule, regulation, ordinance or resolution related to zoning enacted thereafter by a city, county, village or other political subdivision, if such range is operated in compliance with shooting range performance standards. Neb. Rev. Stat. § 37-1304. Any discharge-related laws adopted by local governments that would apply to the discharge of a firearm at an existing shooting range are unenforceable. Neb. Rev. Stat. § 37-1306. Local jurisdictions have authority to "punish and prevent" the discharge of firearms other than discharge at a shooting range. Neb. Rev. Stat. § 14-102(6). Any noise-related regulations adopted by local governments that would apply to an existing shooting range are also prohibited. Neb. Rev. Stat. § 37-1305. Finally, the Nebraska Shooting Range Protection Act does not prohibit a city, county, village or other political subdivision from regulating the location and construction of a shooting range. Neb. Rev. Stat. § 37-1310(1). |
Nevada |
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Last Updated December 21, 2011 The Nevada Legislature has broadly preempted counties and cities from regulating firearms. Nevada Revised Statutes Annotated § 268.418(1) provides:
Nevada provides identical prohibitions for counties and towns. Sections 244.364(1), 269.222(1). As a limited exception, counties and cities, as well as towns, may regulate the “unsafe discharge of firearms.” Sections 244.364(2), 268.418(2), 269.222(2). If the governing body of a city in a county whose population is 700,000 or more, or a board of county commissioners in a county whose population is 700,000 or more, or a town board in a county whose population is 700,000 or more, has required by ordinance or regulation adopted before June 13, 1989, the registration of a firearm capable of being concealed, the governing body or board shall amend such an ordinance or regulation to require a period of at least: a) 60 days of residency in the city, town or county before registration of such a firearm is required; or b) 72 hours for the registration of a pistol by a resident of the city, town or county upon transfer of title to the pistol to the resident by purchase, gift or any other transfer. Sections 244.364(3), 268.418(3), 269.222(3). There are no cases interpreting sections 244.364, 268.418 or 269.222. |
New Hampshire |
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Last Updated January 12, 2012 New Hampshire Rev. Stat. Ann. § 159:26(I) provides in part:
Section 159:26 does not affect a local government's right to adopt non-discriminatory zoning ordinances. Section 159:26(I). Pursuant to section 159:26(II), local ordinances that relate to the "sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearm components, ammunition, firearms supplies or knives" became void on July 18, 2003. There is no case law interpreting this statute. In State v. Jenkins, 162 A.2d 613 (N.H. 1960), the New Hampshire Supreme Court overturned a town by-law that prohibited the discharge of a firearm in the entire town except on private property with written permission of the owner. The court held that the by-law was inconsistent with state hunting statutes that allowed the discharge of firearms on certain other properties at certain times of year. Id. at 614. The ability of local governments in New Hampshire to impose limits on noise and noise pollution from shooting ranges is limited by sections 159-B:1 through 159-B:8. See the Immunity Statutes section of the New Hampshire state page for further information. |
New Jersey |
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Last Updated May 4, 2011 Article 4, § VII, par. 11 of the New Jersey State Constitution confers broad powers on municipalities and counties:
State statutes treat municipalities and counties differently in terms of their local regulatory authority, however.
New Jersey explicitly authorizes municipalities (defined to include cities, towns, townships, villages and boroughs, but not counties) to "[r]egulate and prohibit the sale and use of guns, pistols, [and] firearms . . ." N.J. Stat. Ann. § 40:48-1, subdivision 18 (section 40:48-1(18)). Municipalities may also enact ordinances, regulations, rules and by-laws that are consistent with state and federal law for, inter alia, the "preservation of the public health, safety and welfare of the municipality and its inhabitants." Section 40:48-2. The New Jersey Supreme Court has recognized that N.J. Stat. Ann. § 40:48-2 grants municipalities "broad police power over matters of local concern and interest." Twp. of Chester v. Panicucci, 299 A.2d 385, 387-388 (N.J. 1973). Furthermore, municipalities are described under state law as broad repositories “of local police power in terms of the right and power to legislate for the general health, safety and welfare of their residents.” N.J. Stat. Ann. § 40:41A-28. Municipal regulatory power is constrained, however, by the doctrine of preemption. The essence of preemption is that a municipality, as an agent of the state, cannot act contrary to state law or policy. Summer v. Teaneck, 251 A.2d 761, 764 (N.J. 1969). This is true even where the state has granted to municipalities explicit authority to regulate in a particular subject-matter area. Preemption does not exist, however, simply because the legislature has legislated in a subject-matter area; rather, "intent to occupy the field must appear clearly." Id. In Overlook Terrace Management Corp. v. Rent Control Board of West New York, 366 A.2d 321 (N.J. 1976), the Supreme Court of New Jersey created a two-step test for courts to use when determining whether state law preempts a municipality from regulating a particular subject matter. Under this test, a court must initially determine "whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the State has acted." Overlook Terrace, 366 A.2d at 326. If the subject matter is not the same, "preemption is clearly inapplicable." Id. If it is the same, the court must then consider the following five preemption factors to determine if the legislature intended to preempt the subject matter:
Id. Courts applying these factors do not always analyze each factor separately, but often blend them together in the analysis, ultimately relying on what the court believes to be the intent of the legislature when deciding whether state law or policy preempts a municipal ordinance. See, e.g., Mack Paramus Co. v. Mayor and Council of Borough of Paramus, 511 A.2d 1179, 1184-86 (N.J. 1986). In addition, municipal authority to adopt ordinances regulating criminal activity is constrained by the preemption provisions of N.J. Stat. Ann. § 2C:1-5d. Those provisions are relevant because ordinances regulating firearms are often penal in nature, in that they impose criminal penalties. Section 2C:1-5d (enacted after section 40:48-1(18)) provides:
Under this statutory provision, a court must determine whether the absence of a state ban on certain conduct indicates legislative intent to "decriminalize" that conduct. Any local regulation prohibiting such conduct will be deemed preempted by exclusion under section 2C:1-5d. See State v. Crawley, 447 A.2d 565 (N.J. 1982). Moreover, under N.J. Stat. Ann. § 2C:1-5d a municipality may not regulate a subject-matter area that the state has comprehensively regulated. State regulation may preempt that area due to the subject matter's inclusion in state law. See Mack Paramus Co., supra. Township of Chester v. Panicucci, 299 A.2d 385 (N.J. 1973), is the most authoritative case concerning municipal power to regulate firearms in New Jersey. In Panicucci, the Supreme Court of New Jersey interpreted section 40:48-1(18), holding that a statute regulating firearm discharge for hunters did not preempt a more stringent local law regulating firearm discharge for hunting and other activities. The court determined that the legislature did not intend to completely occupy the field of hunting safety to "preclude municipalities from also dealing with local aspects of the problem." Panicucci, 299 A.2d at 389. Regarding section 40:48-1(18), the court held that the legislature did not intend to preempt the field of firearm control when it adopted a state gun control scheme, and that section 40:48-1(18) may be used by municipalities to regulate the sale and use of firearms. Panicucci, 299 A.2d at 390. Panicucci supports municipal authority to regulate the sale and use of firearms under N.J. Stat. Ann. § 40:48-1(18). Because Panicucci predates the adoption of section 2C:1-5d, the creation of the Overlook Terrace factors, and the enactment of many of New Jersey’s firearm-related statutes, however, it is uncertain how much municipalities may rely on it. Subsequent supreme court pronouncements (in decisions not involving firearm regulation) do suggest, however, that local firearm ordinances are valid regulations not preempted by state law. For example, in Crawley, supra, the supreme court held that the legislature’s repeal of a state law prohibiting loitering had the effect of preempting, by exclusion, a Newark ordinance that criminalized loitering. While the court found that the legislature made a conscious decision to decriminalize loitering, it emphasized that "a municipal ordinance will not be invalidated on preemption grounds merely because it deals with substantially the same subject matter as a state statute." Id. at 569-70. The court cited Panicucci as support for this proposition, noting that although in Panicucci "the statute and [firearm] ordinance overlapped, we found no preemption because we concluded that the legislature did not intend to prohibit complementary local [gun] legislation." Crawley, 447 A.2d at 570. In an unpublished case from 2010, Faraci v. Monmouth County Bd. of Rec. Comm'rs, 2010 N.J. Super. Unpub. LEXIS 151 (Jan. 25, 2010), a state appeals court found that a municipal ordinance banning the discharge of firearms and other weapons was in conflict with, and preempted by, a county measure adopted pursuant to state authority that specifically intended to enable county commissioners to have exclusive control over the regulation of county parks. Faraci, 2010 N.J. Super. Unpub. LEXIS 151, at *10-*11. The appeals court found that the municipal ordinance met all five Overlook Terrace factors, favoring preemption, while noting that its decision is consistent with the ruling in Panicucci. Finally, in 2008, a New Jersey appeals court affirmed a superior court ruling that had invalidated a Jersey City ordinance limiting handgun sales and purchases to one per person within a 30-day period, on the grounds that state law preempted the local law. Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 955 A.2d 1003 (N.J. Super. Ct. App. Div. 2008). However, that appellate court opinion and judgment were vacated, and the appeal dismissed as moot, by the Supreme Court of New Jersey because the state legislature adopted an identical 30-day handgun sales limitation while the supreme court appeal was pending. See Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 992 A.2d 1 (N.J. Sup. Ct. 2010). In sum, the intent of the legislature to make a gun law exclusive of local regulation, or to permit local regulation regardless of state law, is the paramount question in determining whether municipal gun ordinances are valid local regulations or are preempted by state law. The validity of such ordinances likely will be determined on a case-by-case basis.
The power of counties to regulate locally is provided under Art. 4, § VII, par. 11 of the New Jersey State Constitution, discussed above. New Jersey Statutes Annotated § 40:41A-27b expressly permits charter counties to, among other things, "[a]dopt, amend, enforce, and repeal ordinances and resolutions." Counties in New Jersey appear to be authorized to use their constitutionally-conferred regulatory authority to enact ordinances that complement current state firearm policies. |
New Mexico |
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Last Updated March 15, 2011 The police power of municipalities and counties in New Mexico is limited in the area of firearms regulation. The following sentence was added to Article II, § 6 of the Constitution of New Mexico in 1986: "No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms." In Baca v. New Mexico Dept. of Public Safety, 2002-NMSC-017, 132 N.M. 282, 47 P.3d 441, the Supreme Court of New Mexico held that New Mexico Statutes Annotated § 29-18-11(D), subsequently repealed, which delegated authority to local governments to disallow the carrying of concealed handguns, violated article II, § 6. Baca, 2002-NMSC-017, ¶ 13, 132 N.M. 282, 47 P.3d 441. According to the supreme court, article II, § 6 indicates the state’s intent to have uniform firearms regulation throughout the state, rather than piecemeal local regulation. Baca, 2002-NMSC-017, ¶ 6, 132 N.M. 282, 47 P.3d 441. The court concluded that the manner in which a person bears a weapon is an "incident of the right to bear arms" under article II, § 6. Baca, 2002-NMSC-017, ¶ 7, 132 N.M. 282, 47 P.3d 441. The only other interpretation of the preemptive effect of article II, § 6 is set forth in an opinion of the Attorney General of New Mexico. The Attorney General has opined that prior to the adoption of the last sentence in article II, § 6 in 1986, local governments had police power authority to enact reasonable firearms regulations, but that the amended article II, § 6 removed that authority. Op. Att’y Gen. No. 90-07 (1990), 1990 N.M. AG LEXIS 5. Further, the opinion defines an article II, § 6 "incident" of the right to keep and bear arms to include the transfer of weapons. Id. at *4-*5. The provisions of New Mexico’s Sport Shooting Range Act (N.M. Stat. Ann. §§ 17-8-1 – 17-8-6) "shall not prohibit a local government from regulating the location and construction of sport shooting ranges after July 1, 2002." N.M. Stat. Ann. § 17-8-5. |
New York |
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Last Updated November 18, 2011 New York Constitution Art. IX, § 2(c) and New York Municipal Home Rule Law § 10(1)(ii)(a)(12) (containing substantially the same language) confer broad power upon local governments to adopt laws that relate to, among other things, the "protection, order, conduct, safety, health and well-being of persons or property." However, local laws may not conflict with the state constitution or general laws. N.Y. Const. art. IX, § 2(c), N.Y. Mun. Home Rule Law § 10(1)(i), (ii). State courts have found the regulation of weapons to be a legitimate exercise of local police power. See, e.g., People v. Stagnitto, 691 N.Y.S.2d 223 (N.Y. App. Div. 1999) (upholding city ordinance regulating assault weapons). In DJL Restaurant Corp. v. City of New York, 749 N.E.2d 186, 190 (2001), a non-firearms case, the Court of Appeals of New York explained the two ways in which state law preempts local law: 1) when a local law directly conflicts with a state statute; and 2) when a local government legislates in a field which the state occupies, either expressly or by implication. Conflict occurs when local law prohibits conduct which the state allows, or does not proscribe, or imposes additional restrictions on rights granted by state law. Id. State occupation of a field can be found from an express declaration by the state or impliedly from "the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area.’" Id. (citations omitted). New York has not expressly preempted local firearms or ammunition ordinances, nor has the legislature universally been found to have impliedly preempted the broad field of firearms regulation. For example, in People v. Stagnitto, supra, the court rejected defendant’s contention that Rochester’s assault weapon law was preempted by section 265.00 et seq. (New York’s Penal Code provisions regulating firearms and other dangerous weapons), stating, "[t]he mere fact that a local ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate it." Stagnitto, 691 N.Y.S.2d at 225 (citations omitted). Similarly, in Richmond Boro Gun Club, Inc. v. City of New York, No. CV-92-0151(RR), *9, Report and Recommendation (E.D.N.Y. Apr. 16, 1992), the United States District Court for the Eastern District rejected plaintiff’s motion for a preliminary injunction regarding New York City’s assault weapons ban, finding "no intent, either express or through ‘occupying the field’, on behalf of the state legislature to preempt the field of firearm regulation." The Richmond Boro court observed that "even if the local law is inconsistent with the state law, there may not be a preemption if it can be shown that there is a specific local problem justifying the enactment." Id. at *7, citing People v. Ortiz, 479 N.Y.S.2d 613, 622 (N.Y. Crim. Ct. Bronx Co. 1984). "To the extent that any such intent may reasonably be gleaned from [N.Y. Penal Law §§ 265.00 et seq. and 400.00 et seq.], it appears that there is an overriding specific local safety problem justifying New York City’s ban on assault weapons." Richmond Boro Gun Club, Inc., No. CV-92-0151(RR), Report and Recommendation, at *9. The court went on to note that the recent and sudden proliferation of assault weapons had prompted the city council to act. Id. at *12. In Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 201-02 (N.Y. Sup. Ct. 1994), the court held that state law did not preempt a city from regulating the possession and sale of assault weapons with large capacity ammunition magazines or certain accessories. "Clearly, the State has not, either directly or indirectly, regulated all aspects of gun possession and use as to time, place and circumstance." Id. In Grimm v. City of New York, 289 N.Y.S.2d 358, 363 (N.Y. Sup. Ct. Queens Co. 1968), the court determined that New York City’s licensing and registration law regarding rifles and shotguns was not preempted by state law. The court stated that while state law addressed the possession of rifles or shotguns by persons under age 16, aliens, convicted felons and adjudicated incompetents (see § 265.00 et seq.), it did not deal "so extensively with the subject of the control of such weapons as to evidence any design or intention by the State to pre-empt the entire field." Id. In De Illy v. Kelly, 775 N.Y.S.2d 256 (N.Y. App. Div. 2004), the court upheld a local regulation that allows firearm possession restricted by state law. The De Illy court rejected a preemption challenge to New York City's creation of a "premise" license that allows a permittee to possess a firearm on his or her premises and to transport the firearm to authorized target ranges and hunting areas. The court found that although state law regulating premise licenses, N.Y. Penal Law § 400.00(2)(a), does not permit licensees to transport weapons, the law has not preempted the field and the local law is merely an acceptable supplement to state law in this area. Id. Other judicial decisions have found firearm ordinances preempted by state law. Most significantly, in Matter of Chwick v Mulvey, 915 N.Y.S.2d 578 (N.Y. App. Div. 2010), the court held that New York state law implicitly preempted a Nassau County ordinance prohibiting the possession of “deceptively colored” handguns. The court held that the ordinance interfered with the licensing provisions of New York law by making it illegal for an individual to possess a deceptively colored handgun in Nassau County even though such individual held a valid firearms license under state law. Id. at 587. Further, the appellate court held that the comprehensive and detailed regulatory language and scheme of state law demonstrated the legislature's intent to preempt the field of firearm regulation. Id. In Citizens for a Safer Community v. City of Rochester, supra, the court found that federal and state law (15 U.S.C. § 5001(g), and N.Y. Gen. Bus. Law §§ 870 and 871, respectively) established an intent to fully regulate "the manufacture, sale and possession of air guns, spring guns, and imitation arms," thereby preempting the portion of the City’s ordinance defining "air guns" (which was also found to be vague and overbroad). Citizens for a Safer Community, 627 N.Y.S.2d at 206. Some courts have overturned firearm ordinances due to a conflict with state law. In People v. Kearse, 289 N.Y.S.2d 346, 350-51 (N.Y. City Ct., Syracuse 1968), defendants challenged part of a Syracuse law allowing the mayor to prohibit persons from carrying or possessing firearms during "special emergencies," arguing that the ordinance made no exception for state license holders. The trial court agreed, noting that N.Y. Penal Law § 400.00(6) specifically provides that "[a]ny license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance." Kearse, 289 N.Y.S.2d at 352. (Emphasis added by the court.) Finally, the court in People v. Del Gardo, 146 N.Y.S.2d 350, 354 (City Magis. Ct. Manhattan 1955) invalidated a New York City ordinance banning any toy or imitation handgun which "substantially duplicates" an actual handgun (unless certain requirements were met), because the ordinance did not exempt cap guns, which state law permits the sale and use of "at all times." (Emphasis added by the court.) |
North Carolina |
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Last Updated December 29, 2011 North Carolina’s preemption statute, North Carolina General Statutes § 14-409.40, declares the regulation of firearms to be a general, statewide concern, and precludes all local regulation except as specified in the statute. Section 14-409.40(a). Section 14-409.40(b) specifically prohibits all local governments from regulating "in any manner the possession, ownership, storage, transfer, sale, purchase, licensing, or registration of firearms, firearms ammunition, components of firearms, dealers in firearms, or dealers in handgun components or parts" unless otherwise permitted by statute. The exceptions to this statute are as follows:
Local governments may not regulate firearms shows with restrictions more stringent than those imposed on shows of other types of items. Section 14-409.40(d). There are no published cases interpreting section 14-409.40 or its exceptions. A sport shooting range that is operated and is not in violation of existing law at the time of the enactment of an ordinance and that was in existence on September 1, 1994 shall be permitted to continue in operation even if the operation of the range at a later date does not conform to the new ordinance or an amendment to an existing ordinance, provided the current primary use of the range still represents the activity previously engaged in at the range. Sections 14-409.45(3), 14-409.46(e). This provision and the remaining provisions of the Sport Shooting Range Act of 1997, N.C. Gen. Stat. §§ 14-409.45 – 14-409.47 do not prohibit a local government from regulating the location and construction of a sport shooting range. Section 14-409.47. See the North Carolina Immunity Statutes section for information regarding lawsuits by local governments against the gun industry. |
North Dakota |
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Last Updated November 14, 2011 North Dakota’s broad preemption statute, North Dakota Century Code § 62.1-01-03, states: No political subdivision, including home rule cities or counties, may enact any ordinance relating to the purchase, sale, ownership, transfer of ownership, registration, or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void. Although there is no case law construing this statute, the North Dakota Attorney General has opined that section 62.1-01-03 was intended to preempt local authority to regulate firearm purchase, sale, ownership, transfer, registration, and licensure, but not local authority to regulate possession of a firearm. ND Op. Att’y Gen. 86 (1988), 1988 N.D. AG LEXIS 20, *5-7. The attorney general found evidence in the legislative history of section 62.1-01-03 supporting this interpretation. Noting that no state statute governs possession of a loaded firearm on public property or on private property without the consent of the owner or person in charge of the private property, the attorney general concluded that section 62.1-01-03 does not prohibit a city from adopting an ordinance prohibiting such possession in these locations. Id. at *1-3, 8. Section 37-01-21 prohibits a municipality from raising or appropriating money toward arming, equipping, supporting, or providing drillrooms or armories for any body of people associating as a military company or parading in public with firearms. While section 62.1-02-05 generally prohibits possession of a firearm at a public gathering, subsection 62.1-02-05(3) states that a political subdivision may still enact a less restrictive ordinance relating to the possession of firearms at a public gathering, and that such an ordinance supersedes section 62.1-02-05 within the jurisdiction of the political subdivision. Id. Section 42-01-01.1 provides that if a sport shooting range remains in compliance with noise control or nuisance abatement rules or ordinances in effect on the date on which the range commenced operation, the range is not subject to a civil or criminal action resulting from or relating to noise generated by its operation. Furthermore, a rule, resolution, or ordinance relating to noise control, noise pollution, or noise abatement adopted by the state or a political subdivision may not be applied to prohibit the operation of a sport shooting range, provided the conduct was lawful and being conducted before the adoption of the rule, resolution, or ordinance. Id. However, a political subdivision may regulate the location and construction of a sport shooting range after August 1, 1999. Id. Section 42-01-01.1 specifically states that it applies to a county or city enacting a home rule charter under chapter 11-09.1, 40-05.1, or 54-40.4, "notwithstanding any other provision of law." See the North Dakota Immunity Statutes / Manufacturer Litigation section below for further information regarding the impact of section 42-01-01.1 on litigation against shooting ranges. Please see the Preemption summary for a general discussion of this issue, as well as the Federal Preemption section of the Federal Law Summary page. |
Ohio |
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Last updated January 31, 2012 Municipal Authority to Regulate Firearms The Ohio Constitution grants municipalities (cities and, for some purposes, villages) the “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” Ohio Const. Art. XVIII, §§ 1 and 3. Charter counties may also be organized as municipal corporations, and possess all the police powers granted to cities and villages. Ohio Const. Art. X, § 3. Because municipal police powers are constitutionally granted, the Ohio Legislature may not withdraw these powers without an amendment to the Ohio Constitution. The powers may be limited only via enactment of a general law that conflicts with a given local ordinance. Fondessy Enterprises, Inc. v. City of Oregon, 492 N.E.2d 797, 799-800 (Ohio 1986). In March 2007, Ohio Revised Code Annotated § 9.68 took effect. Section 9.68(A) provides that regardless of local law, a person "without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition" so long as his or her action does not violate federal or state law. Some exceptions are provided for zoning ordinances that are consistent with regulation of other retail businesses in the same area. Also, in 2007, the City of Cleveland challenged section 9.68 as a violation of Article XVIII of the Ohio Constitution, § 3. Despite the expansive home rule authority Article XVIII grants to municipalities, the Ohio Supreme Court upheld Section 9.68. City of Cleveland v. Ohio, 128 Ohio St. 3d 135, 2010-Ohio-6318, 942 N.E.2d 370. In doing so, the Supreme Court reversed the appellate court which had ruled that section 9.68 did not supersede local law because it was not a “general law.” The general law test established by City of Canton v. State, 95 Ohio St. 3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 21 provides that a general law must: 1) be part of a statewide and comprehensive legislative enactment; 2) apply to all parts of the state alike and operate uniformly throughout the state; 3) set forth police, sanitary, or similar regulations, rather than grant or limit municipal legislative power; and 4) prescribe a rule of conduct upon citizens generally. The Ohio Supreme Court found that section 9.68 met each prong of this test. If a state law is determined to be a general law, a local ordinance must not conflict with it. To determine whether an ordinance conflicts with a general law, a court must consider "whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Fondessy Enterprises, Inc. v. City of Oregon, 492 N.E.2d 797, 801 (Ohio 1986). For example, in Ohioans for Concealed Carry, Inc. v. City of Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967, the Ohio Supreme Court struck down a local law that prohibited carrying a firearm in a city park because the ordinance conflicted with state law which allows concealed carry licensees to carry anywhere in the state. Note, however, that when the state prohibits specific activity, a conflict does not necessarily exist when a local government enacts stricter regulation on the same activity. In a case decided before section 9.68 took effect, the Ohio Supreme Court found that a local law did not conflict with state law in Cincinnati v. Baskin, 112 Ohio St. 3d 279, 2006-Ohio-6422, 859 N.E.2d 514. The defendant in Baskin was found in possession of a firearm in violation of a local law which banned semi-automatic firearms with the capacity to fire more than ten rounds. The defendant argued that the city’s ban was in conflict with state law which bans dangerous ordnances and defines them to include semi-automatic firearms with a capacity to fire more than 31 rounds. Although the court found the state law to be a general law, it did not find a conflict between the local ordinance and the state statute. The court explained that in order for a conflict to arise, the state "must positively permit what the ordinance prohibits, or vice versa." Id. at ¶ 20 (quoting Cincinnati v. Hoffman, 285 N.E.2d 714, 719 (Ohio 1972)). The court found that the state’s ban on firearms with a capacity to fire more than 31 rounds did not amount to authorization to possess firearms with a capacity to fire 31 rounds or fewer:
Cincinnati v. Baskin, 112 Ohio St. 3d 279, 2006-Ohio-6422, 859 N.E.2d 514, at ¶ 23. Township and Non-Charter County Authority to Regulate Firearms In contrast to municipalities, townships and non-charter counties derive their police powers from the legislature, not the Ohio Constitution. McDonald v. City of Columbus, 231 N.E.2d 319, 320-22 (Ohio Ct. App. 1967). Although Ohio Revised Code Annotated § 504.01 provides townships with a method to exercise limited home rule powers (i.e., police powers), section 504.04 expressly provides that townships may not establish "regulations affecting hunting, trapping, fishing, or the possession, use, or sale of firearms." Section 302.13(M) grants counties the authority to make any rule or act that does not conflict with general law or with the exercise of powers by municipalities and townships. Thus, townships and non-charter counties are very limited in their ability to adopt regulations affecting firearms. |
Oklahoma |
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Last Updated November 4, 2010 Oklahoma has a detailed preemption statute that provides:
Okla. Stat. Ann. tit. 21, § 1289.24(A)(1). Oklahoma also prohibits any political subdivision from adopting any “order, ordinance, or regulation concerning in any way the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, carrying, bearing, transportation, licensing, permit, registration, taxation other than sales and compensating use taxes, or other controls on firearms, components, ammunition, and supplies.” Okla. Stat. Ann. tit. 21, § 1289.24(B). Municipalities may, however, adopt an ordinance:
Okla. Stat. Ann. tit. 21, § 1289.24(A)(2). In addition, Oklahoma does not prohibit “any order, ordinance, or regulation by any municipality concerning the confiscation of property used in violation of the ordinances of the municipality.” Okla. Stat. Ann. tit. 21, § 1289.24(C). No municipal ordinance relating to transportation of a firearm improperly may include a provision for confiscation of property. Id. Oklahoma law states that, in enacting the Oklahoma Self-Defense Act (providing for licenses to carry concealed handguns), the state “finds it necessary to occupy the field of regulation of the bearing of concealed handguns.” Okla. Stat. Ann. tit. 21, § 1290.25. There is no case law interpreting these statutory provisions. The Oklahoma Attorney General has opined, however, that the boards of Oklahoma’s public libraries may ban patrons from bringing concealed weapons into the libraries. OK Op. Att’y Gen. No. 95-96, 1996 Okla. AG LEXIS 32 (April 24, 1996). While Okla. Stat. Ann. tit. 21, § 1289.24(A) preempts firearm-related ordinances by “political subdivisions,” which may include a county or multi-county library, the Attorney General stated that “a plain reading of [Oklahoma's concealed weapons licensing and preemption statutes] expresses a specific legislative intent to allow Libraries [sic], as property owners, to control the possession of weapons on property owned or controlled by the library” to the extent of the boundaries of their property. 1996 Okla. AG LEXIS 32, *2-*3. Finally, Okla. Stat. Ann. tit. 21, § 1289.24(D) provides that when a person’s rights under section 1289.24 have been violated, the person shall have the right to bring a civil action against the responsible persons, municipality, and political subdivision jointly and severally for injunctive relief, monetary damages or both such remedies. The Attorney General has opined that section 1289.24(D) does not impose civil liability on a municipal or county law enforcement officer if the officer acts in conformity with state law in seizing a firearm transported in violation of section 1289.13A (improper transportation of a firearm) or other state firearm-related statutes. OK Op. Att’y Gen. No. 03-46, 2003 Okla. AG LEXIS 41 (Nov. 3, 2003). |
Oregon |
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Last Updated October 15, 2010 The Oregon Legislature has specifically preempted certain areas of firearms regulation. Oregon Revised Statutes § 166.170 states:
Local jurisdictions do have authority to enact the following specific firearm-related regulations:
A city, county or other municipal corporation or district may not, however, adopt ordinances that regulate, restrict or prohibit the possession or sale of firearms in a public building that is rented or leased to a person during the term of the lease. Section 166.174. Oregon counties also have authority to adopt ordinances that regulate, restrict or prohibit the discharge of firearms within their boundaries, provided the ordinances do not apply to or affect a person discharging a firearm:
The preemption provisions in sections 166.170 and 166.171 do not affect county ordinances regulating the discharge of firearms in effect on November 2, 1995. Section 166.176. Ordinances regulating discharge on a shooting range, shooting gallery, or other target shooting area designed for such purpose are subject to sections 166.170 and 166.171. Section 166.176. In addition, section 197.770(1) states that any "firearms training facility in existence on September 9, 1995, shall be allowed to continue operating until such time as the facility is not longer used as a firearms training facility." A "firearms training facility" is an indoor or outdoor facility that provides training courses and issues certifications required for: 1) law enforcement personnel; 2) State Department of Fish and Wildlife personnel; or 3) nationally recognized programs that promote shooting matches, target shooting and safety. Section 197.770(2). Any local government or special district ordinance or regulation in effect in 1996 or subsequently adopted that makes a shooting range a nuisance or trespass or provides for its abatement as a nuisance or trespass is invalid with respect to the shooting range. Section 467.136. For information on statutes that provide shooting ranges with immunity from lawsuits, see the Oregon Immunity Statutes section. In Langlotz v. Noelle, 39 P.3d 271 (Or. Ct. App. 2002), the Court of Appeals of Oregon upheld a Multnomah County background check form used to apply for a concealed handgun license that required more detailed information from applicants than state law mandates. The plaintiff had been denied a concealed handgun permit because he refused to answer certain questions on the application form. The plaintiff challenged the sheriff's form on several grounds, including that the sheriff, in adding questions to the application form that are not expressly mentioned in section 166.291 (Oregon's concealed handgun licensing statute), had acted contrary to section 166.170(1) by regulating firearms beyond what the state permitted. Langlotz, 39 P.3d at 274. In allowing county sheriffs to require more detailed information on concealed weapons permit application forms than provided for under state law, the court stated that "[i]n enacting the statute that is the subject of this case, [Or. Rev. Stat. § 166.291], the legislature has 'expressly authorized' [the county sheriff] to regulate the possession and transportation of concealed firearms." Langlotz, 39 P.3d at 274. In Starrett v. Portland, 102 P.3d 728 (Or. Ct. App. 2004), the Court of Appeals of Oregon held that sections 166.170 and 166.173 do not preclude a city from leasing public property to a private party on terms that allow the private party to prohibit concealed handguns on the leased property. The court reasoned that an ordinance leasing public property to a private party is not an exercise of governmental regulation, and is therefore not subject to sections 166.170 and 166.173. Starrett, 102 P.3d 728 at 733. In Oregon State Shooting Ass'n v. Multnomah County, 858 P.2d 1315 (Or. Ct. App. 1993), the Court of Appeals of Oregon reviewed preemption challenges to ordinances prohibiting possession of assault weapons for sale at the Multnomah County Exposition Center, and requiring a fee for background checks on all firearm purchases. The court invalidated the provision prohibiting the possession of an assault weapon for purposes of sale in the County Exposition Center, finding that the provision violated section 166.245 (a now-repealed statute similar to current section 166.173, but providing that counties and other political subdivisions may regulate the possession of loaded or unloaded firearms and ammunition in a public place). Oregon State Shooting Ass'n, 858 P.2d at 1322-23. The court held that section 166.245 permitted local regulation of the possession, but not the sale, of firearms and ammunition. Id. at 1323. As to the imposition of fees for background checks in the ordinances, the court rejected plaintiffs' argument that the fees regulated the sale of firearms and were preempted by section 166.245. Oregon State Shooting Ass'n, 858 P.2d at 1323-24. The court found that the fees under both ordinances were not preempted by state law, as they compensated individuals who completed background checks for prospective firearms purchasers. Id. at 1323. In Doe v. Medford Sch. Dist.549C, 221 P.3d 787, 791 (Or. Ct. App. 2009), the Court of Appeals of Oregon rejected a preemption challenge to a school district policy that prohibits its employees from possessing firearms on school district property or at school-sponsored events. An employee of the school district, who sought to possess a gun while teaching, argued that Or. Rev. Stat. § 166.170(1) preempted the district policy. While the appellate court disagreed with the trial court's conclusion that Or. Rev. Stat. § 166.170(1) did not have preemptive effect, it agreed with the trial court’s ruling that the policy did not violate the statute because “the school district’s internal employment policy does not represent the sort of ‘authority to regulate’ firearms that the statute preempts.” Medford Sch. Dist.549C, 221 P.3d at 799. Finally, in Portland v. Lodi, 782 P.2d 415 (Or. 1989), the Supreme Court of Oregon held that an ordinance prohibiting the carrying of a deadly weapon in a concealed manner, and defining deadly weapon to include pocket knifes, was preempted by state law. While state law also prohibits the carrying of a deadly weapon in a concealed manner, it had recently been amended to exclude pocket knifes. Id. at 417-418. This legislative decision displaced the city’s ordinance. Id. at 418. |
Pennsylvania |
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Last Updated December 22, 2011 Pennsylvania law provides that "[n]o 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." 18 Pa. Cons. Stat. Ann. § 6120(a). Section 6120(a) has been interpreted to preempt local ordinances banning assault weapons. In Ortiz v. Commonwealth, 681 A.2d 152, 155 (Pa. 1996), the Supreme Court of Pennsylvania struck down local assault weapon bans in Philadelphia and Pittsburgh under what is now subsection 6120(a). The court found that the legislature had "denied all municipalities the power to regulate the ownership…transfer or possession of firearms." Id. The court stated that the Pennsylvania Constitution "requires that home rule municipalities…not perform any power denied by" the legislature. Id. The court also noted that firearm regulation is "a matter of concern in all of Pennsylvania," and the legislature "is the proper forum for the imposition of such regulation." Id. at 156. Similarly, in Schneck v. Philadelphia, 383 A.2d 227 (Pa. Commw. Ct. 1978), a lower court held that section 6120(a) preempted a city ordinance requiring a license for the acquisition of a firearm within the city. On the other hand, a lower court has held that section 6120(a) does not preempt ordinances which regulate firearm possession that is already unlawful. Thus, where plaintiffs attempted to carry firearms into a courthouse in violation of an ordinance which forbids the possession of firearms in any county facility, and where state law already barred the possession of firearms in courthouses, the ordinance was not preempted. Minich v County of Jefferson, 869 A.2d 1141, 1144 (Pa. Commw. Ct. 2005) ("the County's ordinance does not regulate the lawful possession of firearms. For that reason, section 6120...does not preempt the County's ordinance"). Later, in Minich v. County of Jefferson, 919 A.2d 356 (Pa. Commw. Ct. 2007), the court rejected a claim that the county lacked authority to enact the same ordinance. The court held that the county had authority to enact the ordinance pursuant to 16 Pa. Stat. Ann. § 509(c), which allows county commissioners to prescribe fines and penalties for violations of a "public safety" ordinance. In Clarke v. House of Representatives, 957 A.2d 361 (Pa. Commw. Ct. 2008), an intermediate appellate court held that section 6120(a) preempted all seven ordinances enacted by the City of Philadelphia in May of 2007. These ordinances would have:
Among other things, the City argued that section 6120(a)’s reference to firearms and ammunition “when carried or transported” allows local governments to regulate uses of firearms and ammunition that do not involve carrying or transporting them. The court rejected this argument, relying on Schneck and Ortiz. Id. at 364. The court also rejected the City’s argument that the Ortiz decision should be revisited because of “changing circumstances, particularly the increase in gun violence in Philadelphia.” Id. at 364-365. This decision has since been affirmed, without a published opinion, by the Supreme Court of Pennsylvania. Clarke v. House of Representatives, 980 A.2d 34 (Pa. 2009). In Nat’l Rifle Assn. v. Philadelphia, 2009 Pa. Commw. LEXIS 470, *2-*13, an intermediate appellate court held that section 6120(a) preempted two ordinances adopted by Philadelphia in June 2008. More specifically, one ordinance would have banned assault weapons and the second ordinance would have prohibited any person from acting as a “straw purchaser” by purchasing a handgun on behalf of an ineligible person. Despite the City’s argument that both of these ordinances only regulated activity that was already unlawful, the court held that the Supreme Court of Pennsylvania’s decision in Ortiz was controlling. Id. at *11-*12. Section 6120(a.1) provides:
Section 6120(a.1) has been held to preclude negligence suits by local jurisdictions against gun manufacturers. In Philadelphia v. Beretta, 126 F. Supp.2d 882 (E.D. Pa. 2000), aff'd, 277 F.3d 415 (3d Cir. 2002), Philadelphia and a number of civic organizations sued several gun manufacturers, alleging that the defendants' marketing and distribution schemes were responsible for allowing access to firearms by criminals and other prohibited purchasers, harming Philadelphia's residents. Liability was predicated on the defendants' alleged negligence and the creation of a public nuisance. The federal district court, in upholding the constitutionality of section 6120, held that the state "legislature may contract the power of home rule municipalities such as Philadelphia." Id. at 892. Finding the city's lawsuit was based on power it could only have received from the state legislature, and that this power had been revoked by section 6120, the court dismissed the action, stating that "the power to regulate firearms within the state [by legislation or litigation] now lies exclusively with the state legislature." Id. at 890. Other state laws also restrict the ability of municipalities to enact firearm laws. Title 53, Pa. Cons. Stat. Ann. § 2962(g) states that "a municipality shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms." Cities in Pennsylvania, however, may regulate the "unnecessary firing and discharge of firearms in or into the highways and other public places...." 53 Pa. Stat. Ann. § 3703. Second class cities (those containing a population of between 250,000 and 1,000,000) may also "regulate, prevent and punish the discharge of firearms . . . [and] prevent and punish the carrying of concealed deadly weapons." 53 Pa. Stat. Ann. § 23131. Third class cities (those containing a population under 250,000 and which have not elected to become a "city of the second class A") may "regulate, prohibit, and prevent the discharge of guns … within the city and … prevent the carrying of concealed deadly weapons." 53 Pa. Stat. Ann. § 37403(26). Title 16, Pa. Stat. Ann. § 6107-C states that second class counties (those having a population between 800,000 and 1,500,000) may not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms. Title 53, Pa. Stat. Ann. § 46202(30) states that boroughs (incorporated areas having a population of at least 500 residents) may regulate, license, and fix the time of opening and closing of shooting galleries. Similarly, section 56531 states that first class townships (those having a population of at least three hundred inhabitants to the square mile) may regulate, license and fix the time of opening and closing of shooting galleries. See the Pennsylvania Immunity Statutes section for information regarding the immunity granted to a shooting range in compliance with noise control laws or ordinances existing at the time when construction of the range was initiated. |
Rhode Island |
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Last Updated April 25, 2011 Rhode Island's preemption statute, Rhode Island General Laws § 11-47-58, provides that "[t]he control of firearms, ammunition, or their component parts regarding their ownership, possession, transportation, carrying, transfer, sale, purchase, purchase delay, licensing, registration, and taxation shall rest solely with the state, except as otherwise provided in [Rhode Island General Laws Chapter 47. Weapons]." Section 11-47-58 (enacted in 1986) may have been intended to supersede section 45-6-1 (enacted in 1896), which allows local governments to pass ordinances to protect the public safety. Section 45-6-1(a) states in relevant part that "[t]own and city councils may…make and ordain all ordinances and regulations for their respective towns and cities, not repugnant to law, which they deem necessary for the safety of their inhabitants from...firearms...." Note, however, that the Rhode Island Legislature last amended section 45-6-1 in 1999 and did not remove the language relating to firearms. Sullivan v. Town of Coventry and Town of Middletown, 2010 R.I. Super. LEXIS 53 (Mar. 17, 2010), confirms that section 45-6-1 remains valid authority for cities to regulate firearms. In Sullivan, Middletown sought to regulate the use of firearms on portions of its shoreline near popular beaches, because hunters were discharging weapons close to the shore and endangering beachgoers. The Rhode Island Department of Environmental Management (DEM) sought an injunction to declare the ordinance invalid on the grounds that state law preempts gun ordinances. The court found that Middletown properly used the authority delegated under section 45-6-1(a) to regulate firearm discharge because such regulation is a matter of local concern, regulating firearms in the interest of public safety has traditionally been the domain of municipalities, and the municipalities' unique ability to identify and respond to local threats to public safety weighs against uniform statewide regulations. Sullivan, 2010 R.I. Super. LEXIS at *4-*9. The court also found that Middletown’s ordinance did not conflict with or contradict state hunting laws or DEM’s authority to regulate hunting across the state. Id. at *10-*15. There are no cases interpreting section 11-47-58. Finally, section 11-47-50 prohibits the discharge of firearms, BB guns, or other contraptions capable of discharging bullets, shot or missiles within the "compact part of any city or town" except on land owned or occupied by the firearm user. Cities and towns may, however, enact ordinances that permit the discharge of such firearms on non-posted lands within the jurisdiction. Section 11-47-50(a). |
South Carolina |
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Last Updated November 2, 2010 The South Carolina Legislature comprehensively preempts local firearm and ammunition laws. South Carolina’s statute provides, in part, that:
South Carolina also preempts ordinances or regulations that regulate a landowner discharging a firearm on his or her property to defend himself, herself, his or her family, employees, or the general public from animals the landowner reasonably believes pose a direct threat or danger. S.C. Code Ann. § 23-31-510(2). Three express exceptions exist to South Carolina’s preemption provisions. Counties, municipalities and other political subdivisions in South Carolina may regulate the:
State law also expressly denies any county, municipality or political subdivision the power to confiscate a firearm or ammunition unless incident to arrest. S.C. Code Ann. § 23-31-520. There are no cases interpreting sections 23-31-510 or 23-31-520. The South Carolina Attorney General was recently asked whether section 23-31-510 prohibits a county ordinance that bans the possession of guns in county parks. 2009 S.C. AG LEXIS 38 (March 5, 2009). The Attorney General opined that, to resolve this question, section 23-31-510 must be read in conjunction with section 23-31-220 (permitting a public or private employer, property owner, or person in legal possession or control of premises to prohibit concealable weapons on their property or in the work place, with proper notice). According to the Attorney General, the statutes operate together to allow a county to “prohibit the carrying of concealed weapons in County parks.” 2009 S.C. AG LEXIS 38 (March 5, 2009), *8-*9. South Carolina also prohibits a nuisance action for noise against a shooting range or the owners, operators, or users of the range, located in the vicinity of a potential plaintiff’s property if the shooting range was already established when the person acquired the property. S.C. Code Ann. § 31-18-30(A). A property owner may bring such action if there has been a substantial change in the use of the range after the person acquires the property, if the suit is brought within three years of the beginning of this substantial change. Id. A person who acquired property near a shooting range before the range was established may maintain a nuisance action for noise if brought within five years after establishment of the range. S.C. Code Ann. § 31-18-30(B). A county, municipal, or state noise control ordinance, rule, or regulation may not:
A local government is not otherwise prohibited from regulating the location and construction of a new shooting range after May 1, 2000. S.C. Code Ann. § 31-18-50. |
South Dakota |
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Last Updated April 1, 2011 South Dakota has enacted three preemption statutes. One is applicable to counties (S.D. Codified Laws § 7-18A-36), one to municipalities (section 9-19-20), and one to townships (section 8-5-13). These statutes are otherwise identical, prohibiting all such local governments from passing “any ordinance that restricts possession, transportation, sale, transfer, ownership, manufacture or repair of firearms or ammunition or their components.” Each statute also declares that any ordinance prohibited by the statute is null and void. There are no cases interpreting these statutes. |
Tennessee |
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Last Updated December 2, 2010 Tennessee Code Annotated § 39-17-1314(a) prohibits a local government from occupying “any part of the field of regulation of the transfer, ownership, possession or transportation of firearms, ammunition or components of firearms or combinations thereof.” This prohibition does not affect the validity of any ordinance or resolution enacted before April 8, 1986. Tennessee’s counties and municipalities may prohibit the possession of handguns while within or on a public park, natural area, historic park, nature trail, campground, forest, greenway, waterway or other similar public place that is owned or operated by a county. Id. Local governments may prohibit the possession of weapons, including gun possession by any person with a Tennessee handgun carry permit, at meetings conducted by, or on property owned, operated, managed or under the control of the government entity. Section 39-17-1359(a). In 1999, the Tennessee General Assembly amended section 39-17-1314 to reserve to the state the exclusive "authority to bring suit and right to recover against any firearms or ammunition manufacturer, trade association or dealer by or on behalf of any" state entity or local government for damages, abatement or injunctive relief resulting from or relating to the lawful design, manufacture, marketing or sale of firearms or ammunition unless based on a breach of contract or warranty in connection with firearms purchased by that entity. Section 39-17-1314(c)(1), (2). While there are no cases construing the provisions of sections 39-17-1314 or 39-17-1359, the Tennessee Attorney General has addressed whether local governments may prohibit the possession of handguns or long guns on publicly-owned property. Op. Att’y Gen. 04-020, 2004 Tenn. AG LEXIS 20 (Feb. 9, 2004). Reviewing the provisions of both Tennessee Code Annotated §§ 39-17-1314(a) and 39-17-1359, the Attorney General opined that although section 39-17-1314(a) precludes local government entities from regulating firearm possession, localities do have the authority to regulate the possession of firearms – both handguns and long guns – on property owned or controlled by a local government. Opinion No. 04-020, at *1-*2, *6. The Attorney General has also opined that municipal regulations permitted under Tenn. Code Ann. § 57-5-106 to regulate the sale of beer via a permit process, a local jurisdiction cannot use this process to restrict a person from possessing a firearm on the premises of an establishment with a permit to sell beer, as section 39-17-1314(a) prohibits such regulation. Op. Att’y Gen. 09-118, 2009 Tenn. AG LEXIS 154 (June 12, 2009). |
Texas |
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Last Updated April 1, 2011 Municipal Authority Texas Local Government Code Annotated § 229.001(a) provides that “[a] municipality may not adopt regulations relating to (1) the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearm supplies, or (2) the discharge of a firearm at a sport shooting range.” Section 229.001(a) does not affect the authority a municipality has under another law to:
Section 229.001(b). See also section 229.004 (limiting certain municipalities’ authority to regulate the discharge of certain weapons in the extraterritorial jurisdiction of the municipalities and newly annexed areas). Under Texas Local Government Code Annotated § 342.003(a)(8), the governing body of a municipality may prohibit or otherwise regulate the use of firearms. However, this section does not authorize a municipality to adopt any prohibition or other regulation that would violate section 229.001. Section 342.003(b). While no case law exists that interprets these statutory preemption provisions, several state attorney general opinions provide insight into the limits of the statutes vis-à-vis local governments, and generally discuss local regulatory authority. For example, the Texas Attorney General has opined that the provisions of a Houston ordinance directed at preventing the discharge of firearms by children did not run afoul of the state firearms preemption statute, Tex. Loc. Gov't Code Ann. § 215.001 (now section 229.001). See Texas Ltr. Op. Att'y Gen. 94-56 (1994), 1994 Tex. AG LEXIS 13. The Houston ordinance not only prohibited the discharge of firearms by minors, but prohibited an adult from facilitating or permitting the discharge or physical possession of a firearm by allowing a child to obtain unsupervised access to a firearm. Id. at *2. In essence, the ordinance also regulated the keeping and storing of firearms by adults. Id. The Attorney General determined that on its face and as a matter of law the ordinance did not violate section 215.001 (now section 229.001) because home rule cities, like Houston, possess broad powers of self-government; section 215.001(b)(2) (now section 229.001(b)(2)) grants them authority to regulate the discharge of firearms within their limits; and the object of Houston’s ordinance was to regulate that specific area. Id. at *3-4. More recently, the Attorney General has opined that certain municipalities may adopt and enforce ordinances prohibiting the discharge of certain firearms or other weapons on property located within their original corporate limits. Tex. Op. Att'y Gen. GA-0862 (2011), 2011 Tex. AG LEXIS 33. The Attorney General has also opined that municipal housing authorities are subject to section 229.001(b)(2) (former section 215.001), and that this statute precludes those authorities from adopting a regulation providing for a tenant’s eviction for the otherwise legal possession of a firearm. Tex. Op. Att'y Gen. DM-71 (1991), 1991 Tex. AG LEXIS 87, *10. Other attorney general opinions may have been superseded by subsequent amendments to state law. Texas law generally prohibits concealed handgun license holders from carrying handguns on property where the owner or lessee has provided notice that concealed handguns are prohibited. Tex. Penal Code Ann. § 30.06. In 2001, the Attorney General concluded, based on section 30.06, that a local government may bar a concealed handgun license holder from carrying a handgun onto its property by providing individual verbal notice to the licensee or by erecting a sign or via other written communication. Tex. Op. Att'y Gen. JC-0325 (2001), 2001 Tex. AG LEXIS 6, *11. However, subsection 30.06(e), which became effective September 1, 2003, provides an exception to section 30.06 for property owned or leased by a governmental entity. For additional information on this topic, see the Texas Other Location Restrictions section. Texas Local Government Code Annotated § 250.001 limits the ability of a governmental official to enforce a municipal ordinance, order or rule regulating noise against a sport shooting range. See the Texas Immunity Statutes section for further information. Texas Local Government Code Annotated § 229.001(a) provides that “[a] municipality may not adopt regulations relating to (1) the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearm supplies, or (2) the discharge of a firearm at a sport shooting range.” Section 229.001(a) does not affect the authority a municipality has under another law to:
Section 229.001(b). See also section 229.004 (limiting certain municipalities’ authority to regulate the discharge of certain weapons in the extraterritorial jurisdiction of the municipalities and newly annexed areas). Under Texas Local Government Code Annotated § 342.003(a)(8), the governing body of a municipality may prohibit or otherwise regulate the use of firearms. However, this section does not authorize a municipality to adopt any prohibition or other regulation that would violate section 229.001. Section 342.003(b). While no case law exists that interprets these statutory preemption provisions, several state attorney general opinions provide insight into the limits of the statutes vis-à-vis local governments, and generally discuss local regulatory authority. For example, the Texas Attorney General has opined that the provisions of a Houston ordinance directed at preventing the discharge of firearms by children did not run afoul of the state firearms preemption statute, Tex. Loc. Gov't Code Ann. § 215.001 (now section 229.001). See Texas Ltr. Op. Att'y Gen. 94-56 (1994), 1994 Tex. AG LEXIS 13. The Houston ordinance not only prohibited the discharge of firearms by minors, but prohibited an adult from facilitating or permitting the discharge or physical possession of a firearm by allowing a child to obtain unsupervised access to a firearm. Id. at *2. In essence, the ordinance also regulated the keeping and storing of firearms by adults. Id. The Attorney General determined that on its face and as a matter of law the ordinance did not violate section 215.001 (now section 229.001) because home rule cities, like Houston, possess broad powers of self-government; section 215.001(b)(2) (now section 229.001(b)(2)) grants them authority to regulate the discharge of firearms within their limits; and the object of Houston’s ordinance was to regulate that specific area. Id. at *3-4. The Attorney General has also opined that municipal housing authorities are subject to section 229.001(b)(2) (former section 215.001), and that this statute precludes those authorities from adopting a regulation providing for a tenant’s eviction for the otherwise legal possession of a firearm. Tex. Op. Att'y Gen. DM-71 (1991), 1991 Tex. AG LEXIS 87, *10. Other attorney general opinions may have been superseded by subsequent amendments to state law. Texas law generally prohibits concealed handgun license holders from carrying handguns on property where the owner or lessee has provided notice that concealed handguns are prohibited. Tex. Penal Code Ann. § 30.06. In 2001, the Attorney General concluded, based on section 30.06, that a local government may bar a concealed handgun license holder from carrying a handgun onto its property by providing individual verbal notice to the licensee or by erecting a sign or via other written communication. Tex. Op. Att'y Gen. JC-0325 (2001), 2001 Tex. AG LEXIS 6, *11. However, subsection 30.06(e), which became effective September 1, 2003, provides an exception to section 30.06 for property owned or leased by a governmental entity. For additional information on this topic, see the Texas Other Location Restrictions section. Texas Local Government Code Annotated § 250.001 limits the ability of a governmental official to enforce a municipal ordinance, order or rule regulating noise against a sport shooting range. See the Texas Immunity Statutes section for further information. County Authority Texas Local Government Code Annotated § 236.002, adopted in 2011, provides that “a county may not adopt regulations relating to: (1) the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearm supplies; or (2) the discharge of a firearm at a sport shooting range.” Under Texas Local Government Code Annotated § 235.023, a commissioners court of a county (the county legislative body) is not authorized to regulate the transfer, ownership, possession, or transportation of firearms or require the registration of firearms. However, Texas law permits the commissioners courts, in the interest of public safety, to prohibit or otherwise regulate the discharge of firearms on lots that are "10 acres or smaller and are located in the unincorporated area of the county in a subdivision." Section 235.022. In addition, in any county building that houses a justice court, county court, county court at law, or district court, or in any office used by these courts, any person who possesses a firearm without the court's written authorization, or without complying with any written regulation of the court, is subject to criminal liability. Section 291.010(c). The Texas Attorney General has opined that governing bodies of counties may prohibit concealed handgun license holders from carrying concealed handguns in parks under county jurisdiction. Tex. Op. Att'y Gen. DM-364 (1995), 1995 Tex. AG LEXIS 94, *11. The Attorney General found that no state law limits a county's police power over parks per Texas Local Government Code Annotated § 331.007. The Attorney General did not mention section 235.023 in the opinion. The Attorney General also opined that a similar analysis applies to a rapid transit authority's power to prohibit concealed handgun licensees from carrying handguns while on a vehicle used by the authority to provide public transportation. Id. at *4-6. Texas Local Government Code Annotated § 250.001 also limits the ability of a governmental official to enforce a county ordinance, order or rule regulating noise against a sport shooting range. See the Texas Immunity Statutes section for further information. |
Utah |
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Last Updated April 1, 2011 Pursuant to Utah Code Ann. § 76-10-500(2), adopted in 1999, "[u]nless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms." Section 78B-4-511 reiterates this policy, stating that "all authority to regulate firearms is reserved to the state through the Legislature." Section 53-5a-102, adopted in 2004, also elaborates upon this policy. It provides, in part:
Section 10-8-47 specifically grants city boards of commissioners and city councils the authority "to regulate and prevent the discharge of firearms.." Sections 76-8-311.1 and 76-8-311.3 allow correctional, law enforcement, and mental health facilities to prohibit or control firearms and ammunition. In Univ. of Utah v. Shurtleff, 2006 UT 51, 144 P.3d 1109, the Utah Supreme Court held that the University of Utah was subject to section 53-5a-102(5). The court held that the University’s policy prohibiting students, faculty, and staff from carrying firearms on campus did not infringe on the legislature’s right under article I, section 6 to “defin[e] the lawful use of arms,” because the University’s policy was contractual rather than legislative in nature. However, the court held that article X, section 4 of the Utah Constitution, which confirms the rights held by public universities and colleges at the time of statehood, does not prevent the application of section 53-5a-102(5) to the University. The State Board of Regents may "authorize higher education institutions to establish no more than one secure area at each institution as a hearing room…but [may] not otherwise restrict the lawful possession or carrying of firearms." Section 53B-3-103(2)(ii)(A); Utah Admin. Code r. 765-254-3. The Board has authorized all Utah State Higher Education institutions to establish these areas. R. 765-254-3. The Board may also authorize higher education institutions to make a rule allowing a dormitory resident to request only roommates not licensed to carry a concealed firearm. Utah Code Ann. § 53B-3-103(2)(ii)(B). A person who operates or uses a shooting range is not subject to civil liability or criminal prosecution for noise or noise pollution from the range if the range does not substantially and adversely affect public health and safety, and either was established, constructed, or operated before the implementation of any noise ordinances, rules, or regulations or is in compliance with any noise control laws, ordinances, rules, or regulations that applied at that time. Section 47-3-3(2). Each state agency or political subdivision must ensure that any of its rules or ordinances that define or prohibit a public nuisance exclude any shooting range established, constructed, or operated before the implementation of the rule or ordinance unless that activity or operation substantially and adversely affects public health and safety. Section 47-3-3(1). |
Vermont |
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Last Updated February 2, 2012 Vermont Statutes Annotated Title. 24, § 2291(8) provides that, "[f]or the purpose of promoting the public health, safety, welfare and convenience," a town, city or incorporated village shall have the power to "regulate or prohibit the use or discharge, but not possession of, firearms within the municipality or specified portions thereof, provided that an ordinance adopted under this subdivision shall be consistent with section 2295 of this title and shall not prohibit, reduce, or limit discharge at any existing sport shooting range, as that term is defined in section 5227 of title 10." Vermont Statutes Annotated Title 24, § 2295 states:
Although the title of section 2295, “Authority of municipal and county governments to regulate firearms, ammunition, hunting, fishing and trapping,” expressly includes counties, the text does not. Counties in Vermont appear to have no legislative authority and are primarily responsible for the organization of the county court system. Vt. Stat. Ann. tit. 24, § 131 et seq. In Hunters, Anglers & Trappers Association of Vermont v. Winooski Valley Park District, 913 A.2d 391 (Vt. 2006), the state Supreme Court held that section 2295 did not prohibit a union municipal district from banning hunting and trapping on district-owned property. Although section 2295 generally prohibits municipalities from directly regulating hunting and trapping, the court noted that it is limited by the clause “[e]xcept as otherwise provided by law.” Hunters, Anglers & Trappers Association of Vermont, 913 A.2dat 397. Examining a number of provisions of Vermont law, the court concluded that the legislature intended to grant a municipality the authority to manage its own property, which included the ability to ban hunting and trapping on the land. Id. As a result of this intent, the conduct authorized as "otherwise provided by law” was exempt from section 2295. Although the district had initially prohibited firearm possession on its property, which would have raised questions about the application of section 2291(8), the district eliminated this ban from its policy prior to the ruling. Hunters, Anglers & Trappers Association of Vermont, 913 A.2d at 398-99. In addition, the Vermont Attorney General has analyzed whether section 2295 would prevent law enforcement from conducting voluntary background checks on prospective handgun purchasers pursuant to the Brady Act. 1997 Vt. AG LEXIS 1, Op. Vt. Att'y Gen. 97-2 (July 23, 1997). The Attorney General noted that section 2295 prohibits the direct regulation of "the possession, ownership, transportation, transfer, sale, purchase, carrying, licensing or registration of . . . firearms, ammunition" or their components. 1997 Vt. AG LEXIS 1, Op. Att'y Gen. 97-2 at *2. The Attorney General reasoned that, in performing a background check, law enforcement is not "directly" regulating the transaction, "but is merely determining if the transaction would violate federal law." Id. Because of this lack of "direct" regulation, the Attorney General concluded that nothing in section 2295 would prevent law enforcement from conducting a voluntary background check. Id. Under Vermont Statutes Annotated title 16, § 563(5), school boards have the power to regulate or prohibit firearms on school premises. School boards must adopt and implement policies regarding students who bring firearms to or possess firearms at school. Vt. Stat. Ann. tit. 16, § 1166(b). Several Vermont cities have municipal charters that specifically grant city bodies the authority to regulate or prohibit the possession and use of firearms. See, e.g., Vt. Stat. Ann. tit. 24A, §§ 17-2.4(b)(4), 257-305(29). The enforceability of such provisions is unclear in light of sections 2291(8) and 2295. In SBC Enterprises, Inc. v. City of South Burlington Liquor Control Commission, 689 A.2d 427, 429 (Vt. 1996), a case not involving firearms, the Supreme Court of Vermont held that a city’s charter provided sufficient authorization for the city’s entertainment ordinance. The court explicitly stated that it did not need to decide whether section 2291 also authorized the ordinance. Id. Vermont law provides that the owner or operator of a sport shooting range, and any person lawfully using the range, who is in substantial compliance with any noise use condition of any issued municipal or state land use permit required by law shall not be subject to any civil liability for damages or any injunctive relief resulting from noise or noise pollution. Vt. Stat. Ann. tit. 10, § 5227(b). If no municipal or state land use permit is otherwise required by law, then the owner or operator of the range and any person lawfully using the range shall not be subject to any civil liability for damages or any injunctive relief relating to noise or noise pollution. Vt. Stat. Ann. tit. 10, § 5227(c). Vermont Statutes Annotated title 10, § 5227(d) states: “Nothing in this section shall prohibit or limit the authority of a municipality or the state to enforce any condition of a lawfully issued and otherwise required permit.” However, even when the range is found to be not in substantial compliance with a municipal or state land use permit, a nuisance claim against the range may only be brought by an owner of property abutting the range. Vt. Stat. Ann. tit. 10, § 5227(e)(1). Furthermore, there is a rebuttable presumption that the range does not constitute any form of nuisance if the range was established prior to the acquisition of the property owned by the person bringing the nuisance claim, and the frequency of the shooting or other alleged nuisance activity at the range has not significantly increased since that person’s acquisition of the property. Id. This presumption may be rebutted only by an abutting property owner showing that "the activity has a noxious and significant interference with the use and enjoyment" of his or her property. Vt. Stat. Ann. tit. 10, § 5227(e)(2). |
Virginia |
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Last Updated October 1, 2011 Virginia Code Annotated § 15.2-1200 states that "[a]ny county may adopt such measures as it deems expedient to secure and promote the health, safety and general welfare of its inhabitants which are not inconsistent with the general laws of the Commonwealth." Section 15.2-1102 makes a comparable grant of general police powers to cities and towns. Virginia has enacted a preemption statute that was significantly amended in 2004. Section 15.2-915 provides:
In 2009, Virginia amended section 15.2-915 to authorize a court to award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging: (i) an ordinance, resolution, or motion as being in conflict with section 15.2-915; or (ii) an administrative action taken in bad faith as being in conflict with section 15.2-915. Section 15.2-915(C). Virginia expressly authorizes the following types of local firearm ordinances:
For information about permissible ordinances governing pneumatic guns, see Non-Powder Guns in Virginia. In 2010, Virginia repealed a law that had allowed counties to require sellers of handguns to furnish the clerk of the circuit court "with the name and address of the purchaser, the date of the purchase, and the number, make and caliber of the weapon sold" within 10 days of any handgun sale. 2010 Va. ALS 495 (amending Va. Code Ann. § 15.2-1207). The repealed law had also allowed a county to impose a license tax up to $25 on persons engaged in the business of selling handguns to the public. Id. (repealing former Va. Code Ann. § 15.2-1206). Prior to a 2004 amendment, section 15.2-915 only prohibited the adoption of new ordinances not specifically authorized by statute and did not prevent the enforcement of ordinances that had been adopted before January 1, 1987. Section 15.2-915 now prevents the enforcement of all local firearms ordinances not specifically authorized by statute, even those adopted prior to January 1, 1987 – ordinances that remained valid under the previous preemption statute. The amendment leaves in doubt the validity of the following ordinances previously declared valid in opinions by Virginia's Attorney General, and one previously declared valid by the Supreme Court of Virginia:
Section 15.2-917 provides that an ordinance regulating any noise cannot subject a sport shooting range to noise control standards more stringent than those in effect at the time the construction or operation of the range initially was approved, or at the time any application was submitted for the construction or operation of the range. Section 22.1-277.07:1 provides:
Finally, section 15.2-915.1 states:
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Washington |
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Last Updated December 9, 2011 Local regulatory authority is derived from Article XI, § 11 of the Washington State Constitution, which provides that "[a]ny county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." The Washington Legislature, however, has limited the authority of local governments to regulate firearms. Washington Revised Code Ann. § 9.41.290 states:
The Supreme Court of Washington has held that section 9.41.290 was not intended to preempt reasonable rules regarding the possession of weapons in the public workplace. Cherry v. Municipality of Metropolitan Seattle, 808 P.2d 746, 750 (Wash. 1991). In Cherry, the court held that a municipal employer has the authority to regulate or prohibit employee possession of firearms while on the job because the provisions under section 9.41.290, as well as its legislative history, do not "deal with the authority of public employers to prohibit their employees from carrying firearms or any other weapons while on duty or at the workplace." Cherry, 808 P.2d at 749. The court noted that section 9.41.290 "was enacted to reform that situation in which counties, cities, and towns could each enact conflicting local criminal codes regulating the general public's possession of firearms." Id. As such, section 9.41.290 was not intended to preempt "the authority of a municipal employer to regulate or prohibit a municipal employee's possession of firearms while on the job or in the workplace." Cherry, 808 P.2d at 750. See also Estes v. Vashon Maury Island Fire Protection District No. 13, 2005 Wash. App. LEXIS 2575 (Wash. Ct. App. 2005) aff’d mem., 129 Wash. App. 1042 (Wash. 2005) (fire protection district's policy of prohibiting firearm possession by visitors on district property does not constitute a law that is penal in nature and therefore falls outside the scope of the criminal firearms regulations governed, and preempted, by § 9.41.290). Section 9.41.300(2) provides that cities, towns, counties and other municipalities may enact ordinances restricting:
Under section 9.41.300(3), cities, towns, and counties also may:
In Pacific Northwest Shooting Park Ass’n v. City of Sequim, 144 P.3d 276 (Wash. 2006), the court held that a city may impose permit restrictions on private party gun sales at a gun show located in the city’s convention center. The court reasoned that the authority to regulate sales of firearms in a city’s convention center was necessarily included within section 9.41.300(2)’s grant of authority to regulate possession at that location, and that a gun show is not a “showing, demonstration, or lecture involving the exhibition of firearms.” Id. at 282-283. The court further reasoned that section 9.41.290 only prohibits “laws and ordinances,” and does not prohibit a municipal property owner from imposing permit conditions related to firearms for the use of its property. Id. at 283. In contrast, however, the Washington Court of Appeals held in Chan v. City of Seattle, 164 Wash. App. 549, 562 (Wash. Ct. App. 2011) that the “plain language” of sections 9.41.290 and 9.41.300 preempted Seattle’s regulation of the possession of firearms at designated park areas and park facilities open to the public. The court found that section 9.41.300 did not allow the city to regulate firearms in parks and park facilities open to the public, and the city was not acting as the proprietor of a business enterprise for private advantage in adopting the firearms rule. Chan, 164 Wash. App. at 565. Moreover, neither Cherry nor Pacific Northwest Shooting Park Ass’n supports the argument that Seattle has the authority to regulate the possession of firearms at designated park areas and park facilities open to the public. Id. at 563. In City of Seattle v. Ballsmider, 856 P.2d 1113 (Wash. Ct. App. 1993), a Washington appellate court held that an ordinance prohibiting discharge of a firearm in Seattle did not violate section 9.41.290. Under section 9.41.110(12), every city, town, and political subdivision of the state is prohibited from requiring the purchaser of a firearm to secure a permit to purchase, or from requiring a firearms dealer to secure an individual permit for each sale. |
West Virginia |
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Last Updated April 18, 2011 West Virginia Code § 8-12-5a provides:
Section 8-12-5(16) states:
There are no cases interpreting sections 8-12-5(16) or 8-12-5a. Section 7-1-3, which lists the powers of county commissions, provides in part:
See the West Virginia Immunity Statutes section for information regarding lawsuits by local governments against the gun industry. |
Wisconsin |
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Last Updated July 12, 2010 Wisconsin has significantly limited the authority of local governments to regulate firearms. Wisconsin Statutes § 66.0409(2) provides that no political subdivision (defined as a city, village, town, or county, per Wis. Stat. § 66.0409(1)(b)) may enact an ordinance or adopt a resolution that:
Notwithstanding this prohibition, counties may impose certain sales or use taxes on "any firearm or part of a firearm, including ammunition and reloader components, sold in the county." Section 66.0409(3)(a). Cities, villages, or towns authorized to exercise village powers under section 60.22(3) may impose restrictions on the discharge of firearms. Section 66.0409(3)(b). In addition, political subdivisions may continue to enforce any ordinance or resolution that was in effect on November 18, 1995, and that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, if the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute. Section 66.0409(4)(a). If any ordinance or resolution is not the same as or similar to a state statute, it has no legal effect and the ordinance or regulation may not be enforced on or after November 18, 1995. Section 66.0409(4)(b). Section 66.0409(5) provides that a county ordinance or resolution that is adopted under section 66.0409(2) or that remains in effect under section 66.0409(4)(a) "applies only in those towns in the county that have not enacted an ordinance or adopted a resolution under [section 66.0409(2)] or that continue to enforce an ordinance or resolution under [section 66.0409(4)(a)]...except that this subsection does not apply to a sales or use tax that is imposed under” subchapter V of chapter 77. Nothing in section 66.0409 prohibits a political subdivision from enacting and enforcing a zoning ordinance that regulates the new construction of a sport shooting range or when the expansion of an existing sport shooting range would impact public health and safety. Section 66.0409(4)(c). Pursuant to section 66.0409(1)(c), a "sport shooting range" is defined as "an area designed and operated for the practice of weapons used in hunting, skeet shooting and similar sport shooting." Section 895.527(4)provides that any sport shooting range in existence on June 18, 2010, may continue to operate as a sport shooting range at its current location notwithstanding any zoning ordinance enacted under sections 59.69 (county planning and zoning authority), 60.61 (general zoning authority for towns), 60.62 (zoning authority for towns exercising village powers), 61.35 (village planning authority) or 62.23(7) (city zoning and planning), if the sport shooting range is a lawful use or a legal nonconforming use under any zoning ordinance enacted under these enumerated code sections in effect on June 18, 2010. The operation of the sport shooting range continues to be a lawful use or legal nonconforming use notwithstanding any expansion of, or enhancement or improvement to, the range. In addition, any sport shooting range in existence on June 18, 1998, may continue to operate notwithstanding:
Subject to limited exceptions, a city, village, town or county may regulate an outdoor sport shooting range’s hours of operation between 11:00 p.m. and 6:00 a.m. Section 895.527(6). Town of Avon v. Oliver, 2002 WI App 97, 253 Wis. 2d 647, 644 N.W.2d 260 (2002) interpreted portions of both section 66.0409 and section 895.527. In Oliver, the Court of Appeals of Wisconsin upheld the Town of Avon’s permanent injunction prohibiting defendant property owner from using a portion of his land as a sport shooting range, since defendant had not obtained the proper conditional use permit to use a section of his property as a shooting range on property zoned for agricultural use. Town of Avon v. Oliver, 2002 WI App 97, ¶¶ 10-14, 253 Wis. 2d 647, ¶¶ 10-14, 644 N.W.2d 260, ¶¶ 10-14. The court held that section 66.0409(4)(c), by its own terms, does not prohibit municipalities from enacting and enforcing zoning ordinances that apply to sport shooting ranges. Town of Avon v. Oliver, 2002 WI App 97, ¶ 13, 253 Wis. 2d 647, ¶ 13, 644 N.W.2d 260, ¶ 13. Furthermore, the court found that portions of section 895.527(4), (5) do not prohibit the application of a zoning ordinance to a sport shooting range unless the range was a lawful or legal nonconforming use under the ordinance as of June 18, 1998. Town of Avon v. Oliver, 2002 WI App 97, ¶ 11, 253 Wis. 2d 647, ¶ 11, 644 N.W.2d 260, ¶ 11. The court found that defendant’s use was not lawful as of that date and the town could permanently enjoin use of the range. Town of Avon v. Oliver, 2002 WI App 97, ¶ 25, 253 Wis. 2d 647, ¶ 25, 644 N.W.2d 260, ¶ 25. |
Wyoming |
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Last Updated April 8, 2011 Wyoming Statutes Annotated § 6-8-401(c) provides:
There is no case law interpreting this statute. Wyoming Statutes Annotated § 19-13-104(e)(i) states that nothing in the Wyoming Homeland Security Act, sections 19-13-101 et seq., confers upon the political subdivisions of the state, or any employee or agent of the state or any governmental unit within the state, the power to confiscate a firearm from a person unless:
In addition, section 19-13-104(e)(ii) provides that nothing in the Wyoming Homeland Security Act confers upon the political subdivisions of the state, or any employee or agent of the state or any governmental unit within the state, the power to impose additional restrictions as to the lawful possession, transfer, sale, carrying, storage, display or use of firearms, ammunition, or components of firearms or ammunition. The governing bodies of all cities and towns may regulate, license, tax, or prohibit shooting galleries. Section 15-1-103(a)(xv). Rules or regulations adopted by any state department or agency for limiting levels of noise in terms of decibel level which may occur in the outdoor atmosphere shall not apply to a sport shooting range exempted from liability under sections 16-11-101 through 16-11-103. Section 16-11-102(c). While those provisions limit the civil liability and criminal prosecution of any person using or operating the range (see the Wyoming Immunity Statutes / Manufacturer Litigation summary), they do "not prohibit a local government from regulating the location and construction of a sport shooting range after" February 16, 1995. Section 16-11-103. |
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