In 2013, Alabama redrafted its firearms preemption laws to broadly preempt local regulation of firearms. Section 13A-11-61.3 states:
(a) The purpose of this section is to establish within the Legislature complete control over regulation and policy pertaining to firearms, ammunition, and firearm accessories in order to ensure that such regulation and policy is applied uniformly throughout this state to each person subject to the state’s jurisdiction and to ensure protection of the right to keep and bear arms recognized by the Constitutions of the State of Alabama and the United States. This section is to be liberally construed to accomplish its purpose.
. . .
(c) Except as otherwise provided in [Section 11-80-11, discussed below] or as expressly authorized by a statute of this state, the Legislature hereby occupies and preempts the entire field of regulation in this state touching in any way upon firearms, ammunition, and firearm accessories to the complete exclusion of any order, ordinance, or rule promulgated or enforced by any political subdivision of this state.
(d) The authority of a political subdivision to regulate firearms, ammunition, or firearm accessories shall not be inferred from its proprietary authority, home rule status, or any other inherent or general power.
The legislature has carved out narrow exceptions to the broad preemption statute. Section 13A-11-61.3 states that it should not be construed to prevent:
- An employer from regulating or prohibiting an employee’s carrying or possession of firearms, firearm accessories, or ammunition during and in the course of the employee’s official duties;
- The enactment or enforcement of a generally applicable zoning or business ordinance that includes firearms businesses along with other businesses, provided that an ordinance designed or enforced effectively to restrict or prohibit the sale, purchase, transfer, manufacture, or display of firearms, ammunition, or firearm accessories that is otherwise lawful under the laws of this state is in conflict with this section and is void;
- A political subdivision from enacting and enforcing rules of operation and use for any firearm range owned or operated by the political subdivision.
- A political subdivision from sponsoring or conducting any firearm-related competition or educational or cultural program and from enacting and enforcing rules for participation in or attendance at such program, provided that nothing in this section authorizes or permits a political subdivision to offer remuneration for the surrender or transfer of a privately owned firearm to the political subdivision or another party as a method of reducing the number of privately owned firearms within the political subdivision.
- The adoption or enforcement by a county or municipality of ordinances which make the violation of a state firearm law a violation of an ordinance, provided that the elements of the local ordinance may not differ from the state firearm law, nor may the local ordinance impose a higher penalty than what is imposed under the state firearm law.
- A county or a municipality from exercising any authority it has to assess, enforce, and collect generally applicable sales taxes, use taxes, and gross receipts taxes in the nature of sales taxes as defined by Section 40-2A-3(8), Code of Alabama 1975, on the retail sale of firearms, ammunition, and firearm accessories along with other goods, provided that no such tax imposed by a county or municipality may apply at a higher rate to firearms, ammunition, or firearm accessories than the general sales tax rate of the jurisdiction.
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 6-5-341.1 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.2 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.3
Alaska has expressly preempted most local firearm regulation. Alaska Statutes § 29.35.145(a) provides:
The authority to regulate firearms and knives is reserved to the state, and, except as specifically provided by statute, a municipality may not enact or enforce an ordinance regulating the possession, ownership, sale, transfer, use, carrying, transportation, licensing, taxation, or registration of firearms and knives.
Municipalities may, however, adopt ordinances that:
- Are identical to state law and that provide the same penalty as state law;
- Restrict the discharge of firearms where there is a reasonable likelihood that people, domestic animals, or property will be jeopardized;
- Restrict areas in which firearms may be sold, although businesses selling firearms may not be treated more restrictively than other businesses located within the same zone; and
- Prohibit the possession of firearms in the restricted access area of municipal government buildings (a “restricted access area” is the area beyond a secure point where visitors are screened and does not include common areas of ingress and egress open to the general public, per § 29.35.145(e)(2)).1
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.2
Alaska Statutes § 18.65.800(a) also restricts local gun regulation, providing that:
Notwithstanding any other provision of law…a municipality…may not adopt or enforce a law, ordinance, policy, or rule that prohibits or has the effect of prohibiting an individual from possessing a firearm while that individual is within a motor vehicle or prohibiting an individual from storing a firearm that is locked in the individual’s motor vehicle while the motor vehicle is otherwise legally parked in or on state or municipal property or another person’s property.
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.3
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 18.65.800.4
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 Revised Statutes §13-3118 states that “Except for the legislature, this state and any agency or political subdivision of this state shall not enact or implement any law, rule or ordinance relating to the possession, transfer, or storage of firearms other than as provided in statute.”
Further restrictions and exceptions to this general preemption statute are contained in Section 13-3108, which provides in part that “a political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms or ammunition or any firearm or ammunition components or related accessories in this state.” Additional restrictions and exceptions contained in Section 13-3108 are summarized below.
Section 13-3108 also provides that any law or rule that is enacted by a subdivision in violation of the preemption law is invalid, makes any official who violates the state’s preemption law personally liable, and grants standing to membership organizations to sue to challenge the law and recover attorneys’ fees.1 Specifically, Section 13-3108 provides that if a court determines a political subdivision has knowingly violated the preemption law, the court may assess a civil penalty of up to $50,000, and if a court determines that a state official enacting a law or rule knowingly violated the preemption law, that person may be subject to termination.2
Additional restrictions contained in Section 13-3108 include:
- A political subdivision of this state shall not require the licensing or registration of firearms or ammunition or any firearm or ammunition components or related accessories or prohibit the ownership, purchase, sale or transfer of firearms or ammunition or any firearm or ammunition components or related accessories; and
- A political subdivision of this state shall not enact any rule or ordinance that relates to firearms and is more prohibitive than or that has a penalty that is greater than any state law penalty. A political subdivision’s rule or ordinance that relates to firearms and that is inconsistent with or more restrictive than state law, whether enacted before or after July 29, 2010, is null and void.
Section 13-3108 also removes local authority to limit firearm possession in certain parks and preserves, and makes 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.3 In addition, Section 13-3108 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:
- Any identifying information of a person who leaves a weapon in temporary storage at any public establishment or public event, except that the operator of the establishment or the sponsor of the event may require that a person provide a government issued identification or a reasonable copy of a government issued identification for the purpose of establishing ownership of the weapon. The operator or sponsor must store any provided identification with the weapon and shall return the identification to the person when the weapon is retrieved. The operator or sponsor must not retain records or copies of any identification provided pursuant to this paragraph after the weapon is retrieved;
- Except in the course of a law enforcement investigation, any identifying information of a person who owns, possesses, purchases, sells or transfers a firearm; or
- The description, including the serial number, of a weapon that is left in temporary storage at any public establishment or public event.4
Nevertheless, section 13-3108 permits political subdivisions to enact and enforce firearms regulations that:
- Impose privilege and use taxes on the retail sale, lease or rental of, or the gross proceeds or gross income from the sale, lease or rental of, firearms or ammunition or their components at a rate that applies generally to other items of tangible personal property;
- Require that a minor who knowingly possesses or carries a firearm in any place that is in or open to the public or on any street or highway or on private property (except private property owned or leased by the minor or the minor’s parent, grandparent or guardian) to be accompanied by a parent, grandparent, guardian or certified hunter or firearms safety instructor acting with the consent of a parent, grandparent, or guardian. Any ordinance or rule adopted pursuant to this provision shall not apply to minors age 14 through 17 engaged in lawful hunting or shooting events, including transportation of an unloaded firearm for such purposes, and for activities related to agricultural work;
- Relate to the regulation of commercial land and structures, including firearms or ammunition-related businesses or commercial shooting ranges, in the same manner as other commercial businesses (but see 17-602(A), which states that outdoor shooting range noise standards are a matter of statewide concern). This provision does not authorize a political subdivision to regulate the sale or transfer of firearms on property it owns, leases, operates or controls in a manner that is different than or inconsistent with state law. This provision also does not authorize a political subdivision through a zoning ordinance to prohibit or regulate the otherwise lawful discharge of a firearm or maintenance or improvements directly related to the discharge on a private lot or parcel of land that is not open to the public on a commercial or membership basis; nor to regulate the otherwise lawful discharge of a firearm or maintenance or improvements directly related to the discharge on land that is used for agriculture or other non-commercial purposes. (It should be noted that for the purposes of this provision, a use permit or other contract that provides for the use of property owned, leased, operated or controlled by a political subdivision shall not be considered a sale, conveyance or disposition of property);
- Regulate employees or independent contractors of the political subdivision who are acting within the course and scope of their employment or contract. In 2017, the state limited this authority by prohibiting political subdivisions from regulating the possession, carrying, transportation, and storage of firearms by employees or contractors when they are on their own property or in their own vehicles5; or
- Limit or prohibit the discharge of firearms in parks and preserves. Narrow exceptions exist to this area of regulation, including the discharge of firearms on properly supervised ranges, in approved hunting areas, to control nuisance wildlife, if in possession of a special permit issued by the chief law enforcement officer of the political subdivision, if working as an animal control officer, or in self-defense or defense of another person against an animal attack if a reasonable person would believe that deadly physical force was necessary.
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.6
In City of Tucson v. Rineer, the court rejected a section 13-3108(A) challenge to a Tucson ordinance that prohibits the use or possession of firearms within city parks.7 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.8 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.9 Note that, in 2010, the Arizona Legislature removed local authority to limit firearm possession in certain parks and preserves.10
The court of appeals again rejected a section 13-3108 challenge to a local firearm-related regulation in McMann v. City of Tucson.11 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).12 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.13
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:
Notwithstanding any other law, [section 13-3108] does not authorize a political subdivision to regulate the sale or transfer of firearms on property it owns, leases, operates or controls in a manner that is different than or inconsistent with state law. For the purposes of [section 13-3108], a use permit or other contract that provides for the use of property owned, leased, operated or controlled by a political subdivision shall not be considered a sale, conveyance or disposition of property.
Additionally, 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.
For further information about preemption in this state, contact the Law Center directly.
- Ariz. Rev. Stat § 13-3108(H)-(K). ⤴︎
- Id. § 13-3108(I)-(J). ⤴︎
- See Ariz. Rev. Stat § 13-3108(E), (M). ⤴︎
- Ariz. Rev. Stat § 13-3108(C). ⤴︎
- Ariz. Rev. Stat § 13-3108(G)(4). ⤴︎
- Op. Ariz. Att’y Gen. I78-274, 1978 Ariz. AG LEXIS 16 (Nov. 3, 1978). ⤴︎
- 971 P.2d 207 (Ariz. Ct. App. 1998), superseded by statute, 2010 Ariz. ALS 19. ⤴︎
- Rineer, 971 P.2d at 210. ⤴︎
- Rineer, 971 P.2d at 210. ⤴︎
- 2010 Ariz. ALS 19. ⤴︎
- 47 P.3d 672 (Ariz. Ct. App. 2002), superseded by statute, 2003 Ariz. ALS 162 § 1. ⤴︎
- McMann, 47 P.3d at 674. ⤴︎
- Id. at 678. ⤴︎
Arkansas Code Annotated §§ 14-54-1411(b)(1) (regulating municipalities) and 14-16-504(b)(1) (regulating counties) provide:
(A) A local unit of government shall not enact any ordinance or regulation pertaining to, or regulate in any other manner, the ownership, transfer, transportation, carrying, or possession of firearms, ammunition for firearms, or components of firearms, except as otherwise provided in state or federal law.
(B) This shall not prevent the enactment of an ordinance regulating or forbidding the unsafe discharge of a firearm.
A “local unit of government” is defined as “a city, town, or county.”1
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.
- Ark. Code Ann. §§ 14-16-504(a), 14-54-1411. ⤴︎
General Preemption Law in California
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.1 A local government’s police power includes the power to regulate firearms.2
Ordinances enacted pursuant to the police power are valid unless they conflict with state law.3 A conflict exists if the ordinance contradicts, duplicates, or enters an area occupied by general law, either expressly or by legislative implication.4
“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.”5 Local law is duplicative of state law if it is coextensive with state law.6 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.”7
Express Preemption of Local Laws in California
The California Legislature has expressly preempted the following areas of firearms law: 1) licensing or registration of commercially manufactured firearms8; 2) licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business9); and 3) regulation of the manufacture, sale or possession of “imitation firearms.”10
California Government Code § 53071 provides:
It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision … ..
California Penal Code § 25605(b) provides:
No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Chapter 2 … or Chapter 3 of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.
California Government Code § 53071.5 provides:
By the enforcement of this section, the Legislature occupies the whole field of regulation of the manufacture, sale, or possession of imitation firearms, as defined in subdivision (a) of Section 16700 of the Penal Code, and that section shall preempt and be exclusive of all regulations relating to the manufacture, sale, or possession of imitation firearms, including regulations governing the manufacture, sale, or possession of BB devices and air rifles as defined in subdivision (a) of Section 16700 of the Penal Code.
In addition, while California generally permits local regulation of sport shooting ranges, local jurisdictions are barred from enforcing 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.11
Implied Preemption in California
Courts will not infer preemption unless the circumstances clearly indicate the Legislature intended to preempt the field.12
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:”
- The subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;
- The subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or
- The subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the [locality].13
Courts have looked to the Legislature’s response to court rulings as an indicator of legislative intent. 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.”14
Suter v. City of Lafayette, supra, involved a preemption challenge to an ordinance regulating the location and operation of firearms dealers. The court of appeal held 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 but after the decision, the state legislature passed a statute allowing local governments to enact storage requirements that are stricter than state law), the ordinance provisions did not conflict with, duplicate, or enter into a field fully occupied by state law and were not, therefore, preempted.15
In Doe v. City and County of San Francisco, 186 Cal. Rptr. 380 (Cal. Ct. App. 1982), the Court of Appeal held that Gov’t Code § 53071 and Penal Code § 12026 (now section 25605) 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, violating section 53071’s preemption of “all local regulations … relating to … licensing of commercially manufactured firearms.”16
The court also stated that:
If we were to find in the San Francisco Handgun Ordinance no “licensing” requirement within the express wording of Government Code section 53071 and Penal Code section 12026 (now section 25605), we would still reach the conclusion that state law preempts the San Francisco ordinance under the theory of implied preemption. It is at least arguable that the state Legislature’s adoption of numerous gun regulations has not impliedly preempted all areas of gun regulation. However, we infer from Penal Code section 12026 (now section 25605) that the Legislature intended to occupy the field of residential handgun possession to the exclusion of local governmental entities. A restriction on requiring permits and licenses necessarily implies that possession is lawful without a permit or license.17
Cases subsequent to Doe demonstrate that section 25605 (formerly section 12026) should be read narrowly.18
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 rejected 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, now section 26700, et seq.) and 12071.4 (regulating gun shows, now section 27300, et seq.) 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.19
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.’20”
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.21
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.”22
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 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 implicitly seek to override a county’s ability to manage its property and make fundamental decisions regarding its use.23
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.
Incorporating its analysis and holding in Great Western, the supreme court found that state law did 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 provision merely exempts gun shows from the state criminal prohibition on possessing guns in public buildings, thereby permitting local government entities to authorize such shows. It does not mandate that local government entities permit such a use, and the Nordykes cite no legislative history indicating otherwise.24
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.”25 In addition, the court held that even if the ordinance were partially preempted as to persons exempted from prosecution by state law, it would not be invalidated as a whole.
In Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895 (Cal. Ct. App. 2008), the Court of Appeal considered whether 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) (now section 25605(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) (now section 25605(b)) and 12125-12133 (the state Unsafe Handgun Act, now sections 32000-32030) preempted the transfer and manufacture prohibitions. The California Supreme Court declined to review the case.
In Calguns Foundation, Inc. v. County of San Mateo, 218 Cal. App. 4th 661 (Cal. Ct. App. 2013), the Court of Appeal rejected a preemption challenge to a San Mateo County ordinance prohibiting the possession and use of guns in the county’s parks and recreational areas. In reliance on Great Western and Nordyke the court found no conflict between the ordinance and state law, specifically, Penal Code section 26150 et seq. and Government Code section 53071. The court emphasized that the county ordinance, like the regulations in issue in those cases, was a land use restriction on county-owned property rather than a blanket prohibition on gun possession or use anywhere within the jurisdiction such as the San Francisco municipal ordinance found preempted in Fiscal.26
- Candid Enterprises v. Grossmont Union High School District, 705 P.2d 876, 882 (Cal. 1985). ⤴︎
- Galvan v. Superior Court of San Francisco, 452 P.2d 930 (Cal. 1969). ⤴︎
- Sherwin-Williams Co. v. City of Los Angeles, 844 P.2d 534, 536 (Cal. 1993). ⤴︎
- Id. at 536-7. ⤴︎
- Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420, 428 (Cal. Ct. App. 1997). ⤴︎
- Sherwin-Williams, 844 P.2d at 536. ⤴︎
- Id. at 536-7. (citations omitted). ⤴︎
- Cal. Gov’t Code § 53071 ⤴︎
- Cal. Penal Code § 25605(b ⤴︎
- Cal Gov’t Code § 53071.5. A 2012 amendment to this statute allows the County of Los Angeles and any city within the County of Los Angeles to adopt regulations more restrictive than state law when it comes to regulating the manufacture, sale, possession, or use of any BB device, toy gun, replica of a firearm, device that expels a firearm no more than 16 millimeters in diameter, or any device that is so substantially similar in appearance to a firearm as to lead a reasonable person to perceive that the device is a firearm. ⤴︎
- Cal. Civ. Code § 3482.1(d). ⤴︎
- 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). ⤴︎
- Sherwin-Williams Co., 844 P.2d at 537 (citations omitted). ⤴︎
- City of West Hollywood, supra, 78 Cal. Rptr. 2d at 602, 598-601 (California Legislature’s history of selective and narrow preemption in response to court’s holding that the Legislature had not preempted local firearms regulations indicated Legislative intent to leave this area open to local regulation). ⤴︎
- Id. ⤴︎
- Id. at 384. ⤴︎
- Id. at 385 (citation omitted). ⤴︎
- See City of West Hollywood, 78 Cal. Rptr. 2d at 605 (rejecting argument that section 12026, now section 25605, creates a broad right to purchase or possess any handgun not specifically prohibited by state law).] ⤴︎
- Great Western, 44 P.3d at 128. ⤴︎
- Galvan, supra, 452 P.2d at 938. ⤴︎
- Great Western, 44 P.3d at 128-129. ⤴︎
- Id. at 129. See Galvan, 452 P.2d at 939. ⤴︎
- Great Western, 44 P.3d at 130-131. ⤴︎
- Nordyke, 44 P.3d at 138. ⤴︎
- Id. ⤴︎
- Calguns Foundation at p. 677. ⤴︎
Article XX, § 6 of the Colorado Constitution, entitled “[h]ome rule for cities and towns” provides, in part, that:
The people of each city or town of this state, having a population of two thousand inhabitants as determined by the last preceding census taken under the authority of the United States, the state of Colorado or said city or town, are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters.
Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.
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.1 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.2 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.3
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.”4
Colorado has also adopted several preemption statutes related to firearms. Colorado Revised Statutes § 29-11.7-103 provides:
A local government may not enact an ordinance, regulation, or other law that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law. Any such ordinance, regulation, or other law enacted by a local government prior to March 18, 2003, is void and unenforceable.
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.5
Moreover, section 18-12-105.6(2)(b) provides that:
[n]o municipality, county, or city and county shall have the authority to enact or enforce any ordinance or resolution that would restrict a person’s ability to travel with a weapon in a private automobile…while traveling into, through, or within, a municipal, county, or city and county jurisdiction….
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.”6 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.7
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.8
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.9
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.10
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.”11
A similar lawsuit was filed against Denver by the Aurora Gun Club seeking to invalidate the same Denver ordinances, with a similar outcome.12
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.13
Colorado provides that a local government, including a law enforcement agency, shall not maintain a list or other form of record or database of:
(a) Persons who purchase or exchange firearms or who leave firearms for repair or sale on consignment;
(b) Persons who transfer firearms, unless the persons are federally licensed firearms dealers;
(c) The descriptions, including serial numbers, of firearms purchased, transferred, exchanged, or left for repair or sale on consignment.14
Finally, state law prohibits local governments from enacting noise regulations concerning shooting ranges.15 Counties may regulate the discharge of firearms in areas with an average population of at least 100 persons per square mile.16
- 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). ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Colo. Rev. Stat. § 18-12-201(1)(e). ⤴︎
- Colo. Rev. Stat. § 29-11.7-104. ⤴︎
- City and County of Denver v. State, No. 03-CV-3809, 2004 WL 5212983 (Colo. Dist. Ct. Nov. 5, 2004). ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Sternberg v. City and County of Denver, No. 03-CV-8609 (Colo. Dist. Ct. 2004). ⤴︎
- State v. City & County of Denver, 139 P.3d 635 (Colo. 2006). ⤴︎
- Colo. Rev. Stat. § 29-11.7-102(1). ⤴︎
- Colo. Rev. Stat. § 25-12-109(1). ⤴︎
- Colo. Rev. Stat. § 30-15-302. ⤴︎
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.1 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.2 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.3 The court found that this created an irreconcilable conflict between New Haven’s ordinance and the statute, which rendered the ordinance preempted.4
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.5 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.6 The court also noted that public safety ordinances are given a presumption of validity.7
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.8
Local authority to regulate firearms in Delaware is limited by multiple state statutes.
Delaware Code Annotated Title 22, § 111(a) provides, in part:
The municipal governments shall enact no law, ordinance or regulation prohibiting, restricting or licensing the ownership, transfer, possession or transportation of firearms or components of firearms or ammunition except that the discharge of a firearm may be regulated; provided any law, ordinance or regulation incorporates the justification defenses as found in [title 11, §§ 461-471]. Nothing contained herein shall be construed to invalidate municipal ordinances existing before July 4, 1985, and any ordinance enacted after July 4, 1985, is hereby repealed.1
Delaware Code Annotated Title 22, § 835(a)(6) also specifically prohibits amending a municipal charter to:
Prohibit, restrict or license ownership, transfer, possession or transportation of firearms or components of firearms or ammunition, except that the discharge of a firearm may be regulated; provided that any regulation or ordinance incorporates the justification defenses as found in [title 11 of the Delaware Code]. Nothing contained herein shall be construed to invalidate existing municipal ordinances.
Under Delaware Code Annotated Title 9, §330(c), 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].2
In 2015, Delaware passed two laws clarifying that, notwithstanding the preemption statutes above, municipal and county governments may still adopt ordinances generally regulating the possession of firearms, ammunition, or components of firearms in police stations and municipal or county buildings, provided that all areas where possession is restricted are clearly identified by a conspicuous sign posted at each entrance to the restricted area.3 However, these building restrictions must exempt certain persons, including concealed carry permit holders, law enforcement officers, and persons subject to protection from abuse court orders.4
Finally, 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.5
There is little case law interpreting title 22, § 111, title 22, § 835(a)(6), or title 9, § 330(c).
- “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. ⤴︎
- Del. Code Ann. tit. 9, § 330(c). The “justification defenses” include such defenses to criminal liability as the use of force for self-protection, the protection of other persons, and the protection of property. ⤴︎
- See 2015 DE H.B. 192, enacting Del. Code Ann. tit. 22, § 111(b), and 2015 DE H.B. 201, enacting Del. Code Ann. tit. 9, § 330(d). ⤴︎
- Id. For the definition of “municipal building” and “county building,” see Del. Code Ann. tit. 22, § 111(c), and Del. Code Ann. tit. 9, § 330(e), respectively. ⤴︎
- Del. Code Ann. tit. 10, § 8142(d). ⤴︎
In 2011, Florida enacted an extreme preemption measure designed to severely restrict local authority to regulate firearms, and personally punish local legislators who cause a preempted law to be passed or enforced. Florida Statutes § 790.33(1) provides:
Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.
Not only does § 790.33 declare that the state of Florida occupies “the whole field” of firearms regulation, it also subjects local legislators to personal liability and removal from office for their votes in that field. In a subsection titled “penalties,” § 790.33(3) provides that “[a]ny person . . . that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition . . . by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable.”1 Specifically, a local official who knowingly and willfully violates the statute shall be fined up to $5,000;2 may not be indemnified for the costs of defending himself or herself;3 and may be removed from office by the governor.4 Florida’s law was the first in the nation to provide that a local legislator can be held financially liable and removed from office for “enacting or causing to be enforced” a local ordinance that impinges upon the field of firearms regulation.
Section 790.33 includes only narrow exceptions to preemption, listing five subject areas where local jurisdictions may lawfully continue to regulate the field of firearms.5 Section 790.33 does not prohibit:
(a) Zoning ordinances that encompass firearms businesses along with other businesses, except that zoning ordinances that are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are prohibited;
(b) A duly organized law enforcement agency from enacting and enforcing regulations pertaining to firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their official duties;
(c) Except as provided in s. 790.251,6 any entity subject to the prohibitions of this section from regulating or prohibiting the carrying of firearms and ammunition by an employee of the entity during and in the course of the employee’s official duties;
(d) A court or administrative law judge from hearing and resolving any case or controversy or issuing any opinion or order on a matter within the jurisdiction of that court or judge; or
(e) The Florida Fish and Wildlife Conservation Commission from regulating the use of firearms or ammunition as a method of taking wildlife and regulating the shooting ranges managed by the commission.
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.
Following these preemption statutes, Florida courts have struck down several local regulations of firearms.
In Penelas v. Arms Technology, Inc., Miami-Dade County sued firearms manufacturers, alleging that the manufacturers’ products were defective, ultra hazardous, and created a public nuisance, seeking damages and injunctive relief.7 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.”8
In National Rifle Ass’n of Am., Inc. v. City of South Miami, 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.”9 The court also rejected an opinion by the Florida Attorney General10, 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.”
Most recently, Florida courts have read the Florida Constitution Art. 1. § 8(a) state right to bear arms itself to further preempt the field of firearms regulation. In Florida Carry, Inc. v. University of North Florida, the Court of Appeals of Florida held that the Florida legislature had not delegated its authority to regulate the manner of bearing arms to state universities and struck down a university regulation prohibiting the carrying of encased firearms within motor vehicles parked on a university campus.11
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.12
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, 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.13 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.
Furthermore, Florida prohibits legal actions against firearms manufacturers, distributors, or dealers by a local authority:
A legal action 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 is prohibited.14
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.15
However, actions against a firearms or ammunition manufacturer, distributor, or dealer are permitted for:
- Breach of contract or warranty in connection with a firearm or ammunition purchased by a county, municipality, special district, or other political subdivision or agency of the state; or
- Injuries resulting from the malfunction of a firearm or ammunition due to a defect in design or manufacture.16
Florida statutes provide an exception to local authority preemption under a state of emergency. 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:
- The sale of, or offer to sell, a firearm or ammunition;
- The intentional display of a firearm or ammunition by or in any store or shop; and
- The intentional possession of a firearm in a public place.
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 also 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.17 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.18 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.19 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.20
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.21
Charter counties in Florida may also preempt city ordinances related to firearms in certain circumstances.22
Additionally, the Florida Constitution permits counties to adopt laws that would require such background checks for sales occurring in or on “property to which the public has the right of access” within the county. The Florida Constitution states that, “[e]ach county shall have the authority to require a criminal history records check…in connection with the sale of any firearm occurring within such county.”23 The term “sale” under this section “means the transfer of money or other valuable consideration for any firearm when any part of the transaction is conducted on property to which the public has the right of access.”24 Concealed weapons permit holders are not subject to these laws.25
- Fla. Stat. § 790.33(3)(a). ⤴︎
- Id. at 3(c). ⤴︎
- Id. at 3(d). ⤴︎
- Id. at 3(e). ⤴︎
- See Fla. Stat. § 790.33(4). ⤴︎
- The referenced section provides that employers may not prohibit employees from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot. ⤴︎
- 778 So.2d 1042 (Fla. Dist. Ct. App. 2001). ⤴︎
- Penelas, 778 So.2d at 1045. ⤴︎
- 812 So.2d 504, 505-06 (Fla. Dist. Ct. App. 2002). ⤴︎
- Op. Att’y Gen. 2000-42 (July 11, 2000 ⤴︎
- 133 So. 3d 966 (Fla. 1st DCA 2013). ⤴︎
- Op. Att’y Gen. Fla. 2005-40, 2005 Fla. AG LEXIS 46. ⤴︎
- 664 So.2d 320, 321 (Fla. Dist. Ct. App. 1995). ⤴︎
- Section 790.331(2). ⤴︎
- Section 790.331(3). ⤴︎
- Section 790.331(4). ⤴︎
- Section 790.333(8). ⤴︎
- Section 790.333(5)(a); see also section 790.333(4). ⤴︎
- Section 790.333(5)(b). ⤴︎
- Op. Att’y Gen. Fla. 2008-34, 2008 Fla. AG LEXIS 61. ⤴︎
- Section 823.16. ⤴︎
- See Broward County v. Ft. Lauderdale, 480 So. 2d 631 (Fla. 1985) (holding that a charter county may preempt city regulations regarding handgun sales). ⤴︎
- Fla. Const. art. VIII, § 5(b). ⤴︎
- Id. ⤴︎
- Id. ⤴︎
The Georgia General Assembly has declared the regulation of firearms to be an issue of general, statewide concern.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.”2
Cities and counties are not preempted from enacting the following:
- Regulation of the transport, carrying or possession of firearms by county or city employees in the course of their employment;
- Local ordinances, resolutions or other enactments requiringheads of households to own guns; and
- Reasonable limits or prohibitions on the discharge of firearms within the boundaries of the municipal corporation or county.3
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.4 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.5 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.6
In the 2002 case 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 Georgia Code 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 that 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.7 The court held that the state had exercised that power by enacting a regulatory scheme for the distribution and use of firearms.8 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.9
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.10 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.”11 See the Georgia Immunity Statutes section for further information about the lawsuit.
More recently, in GeorgiaCarry.Org, Inc. v. Coweta County12, the Court of Appeals of Georgia held, in 2007, that section 16-11-173 preempted a county ordinance prohibiting firearms on county-owned property.
However, in the 2009 case GeorgiaCarry.Org, Inc. v. City of Roswell13 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.14
A local government in Georgia 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.”15 A local government imposing such a regulatory fee must determine the amount of the fee by one of six methods prescribed by statute.16 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.17
Georgia Code 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.” However, they “may provide for permits or licenses for the sale or use of consumer fireworks.”18
- Ga. Code Ann. § 16-11-173(a)(1). ⤴︎
- Ga. Code Ann. § 16-11-173(b)(1). ⤴︎
- Ga. Code Ann. § 16-11-173(c), (d), (e). ⤴︎
- Ga. Code Ann. § 16-11-173(a)(2). ⤴︎
- Ga. Code Ann. § 16-11-173(b)(2). ⤴︎
- Id. ⤴︎
- Id. at 529. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Id. at 530. ⤴︎
- Id. ⤴︎
- 655 S.E.2d 346 (Ga. Ct. App. 2007). ⤴︎
- 680 S.E.2d 697 (Ga. Ct. App. 2009). ⤴︎
- Id. at 700-01. ⤴︎
- Ga. Code Ann. § 48-13-9(a), (b)(6), (11). ⤴︎
- Ga. Code Ann. § 48-13-9(e). ⤴︎
- Ga. Code Ann. § 41-1-9(d). ⤴︎
- Ga. Code Ann. §§ 36-60-24; 25-10-1(b); 2015 Ga. Laws 50 (H.B. 110) (enacted May 5, 2015). ⤴︎
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:
Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute, where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State.
There are no statutes or cases specifically addressing whether local governments are authorized to regulate firearms in Hawaii. However, 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 Honolulu1, the court noted that the California Supreme Court had synthesized the general principles governing preemption in Sherwin-Williams v. City of Los Angeles2, as follows:
- If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.
- A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.
- Local legislation is ‘duplicative’ of general law when it is coextensive therewith.
- Similarly, local legislation is ‘contradictory’ to general law when it is inimical thereto.
- Finally, local legislation enters an area that is ‘fully occupied’ by general law when the Legislature has expressly manifested its intent to ‘fully occupy’ the area, or when it has impliedly done so.
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.”3
See the Hawaii Immunity Statutes section for information regarding lawsuits by local governments against the gun industry.
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.”1 Section 18-3302J(2) states:
Except as expressly authorized by state statute, no county, city, agency, board or any other political subdivision of this state may adopt or enforce any law, rule, regulation, or ordinance which regulates in any manner the sale, acquisition, transfer, ownership, possession, transportation, carrying or storage of firearms or any element relating to firearms and components thereof, including ammunition.
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:
- A person discharging a firearm in the lawful defense of persons or property;
- A person discharging a firearm in the course of lawful hunting;
- A landowner and guests of the landowner discharging a firearm, when the discharge will not endanger persons or property;
- A person lawfully discharging a firearm on a sport shooting range; or
- A person discharging a firearm in the course of target shooting on public land if the discharge will not endanger persons or property.2
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:
- A person discharging a firearm in the lawful defense of person or persons or property; or
- A person lawfully discharging a firearm on a sport shooting range.3
In addition, section 18-3302J does not affect:
- The authority of the department of fish and game to make rules or regulations concerning the management of any wildlife of this state; and
- The authority of counties and cities to regulate the location and construction of sport shooting ranges, subject to limitations provided in the Idaho Code.4
The provisions of section 18-3302J are declared to be severable.5
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.
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.”6
There are no cases discussing or interpreting the statutes discussed above.
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).7 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.8 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.9
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.”10 Furthermore, “[r]ules 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.”11 Such 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.”12 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” if the shooting range was established at the point when the property was acquired.13
However, a local unit of government may generally regulate the location and construction of a sport shooting range.14
Sections 55-2601 through 55-2606 do not apply to “state outdoor shooting ranges.”15 (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.16 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 67-9105.17 A new use—including a new residential 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.18
There are no cases interpreting any of the statutes discussed above.
- Idaho Code Ann. § 18-3302J(1). ⤴︎
- Idaho Code Ann. § 18-3302J(3). ⤴︎
- Idaho Code Ann. § 18-3302J(4). ⤴︎
- Idaho Code Ann. § 18-3302J(5). ⤴︎
- Idaho Code Ann. § 18-3302J(6). ⤴︎
- Idaho Code Ann. § 46-1008(7). ⤴︎
- Idaho Code Ann. § 55-2605. ⤴︎
- Id. ⤴︎
- Idaho Code Ann. § 55-2603(2). ⤴︎
- Idaho Code Ann. § 55-2601(1). ⤴︎
- Idaho Code Ann. § 55-2601(2). ⤴︎
- Idaho Code Ann. § 55-2601(3). ⤴︎
- Idaho Code Ann. § 55-2602. ⤴︎
- Idaho Code Ann. § 55-2603(1). ⤴︎
- Idaho Code Ann. § 67-9102(1). ⤴︎
- Idaho Code Ann. § 67-9105. ⤴︎
- Idaho Code Ann. § 67-9103. ⤴︎
- Idaho Code Ann. § 67-9104. ⤴︎
Traditionally, Illinois had broadly permitted the local regulation of firearms. A law adopted by the General Assembly in 2013, however, significantly curtailed this broad authority in several areas.1 The Firearm Owners Identification (FOID) Card Act of 2013 requires an individual to obtain a license called a FOID Card before acquiring or possessing any firearm or ammunition. The amended FOID Card Act states:
…the regulation, licensing, possession, and registration of handguns and ammunition for a handgun, and the transportation of any firearm and ammunition, including but not limited to the delivery of ammunition by the United States Postal Service or other courier, by a holder of a valid Firearm Owner’s Identification Card issued by the Department of State Police under this Act are exclusive powers and functions of this State.2
According to the amended FOID Card Act, any ordinance or regulation, or portion thereof, enacted on or before the date of the Amendment (July 9, 2013) that imposed regulations or restrictions on a holder of a valid FOID Card in a manner that is inconsistent with the FOID Card Act, is invalid in its application to a holder of a valid FOID Card.3
The amended FOID Card Act also deems the regulation of the possession or ownership of assault weapons an exclusive power of the state, and provides that any ordinance that regulates the possession or ownership of assault weapons in a manner inconsistent with the amended FOID Card Act is invalid.4 For purposes of this provision, “assault weapons” are defined as firearms designated by either make or model or by a test or list of cosmetic features that cumulatively would place the firearm into a definition of “assault weapon” under the ordinance.5 The Act allows ordinances regulating the possession or ownership of assault weapons that were adopted on, before, or within 10 days after July 9, 2013 to remain in force.6
However, the amended FOID Card Act left in place a provision that states that, except as described above, “[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 [the FOID Card Act], are not invalidated or affected by this Act.”7 “Municipality” is defined to include cities, villages or incorporated towns, but not townships, counties or park districts.8
The 2013 law also created a licensing system for the carrying of concealed handguns. As part of that system, the 2013 law states:
The regulation, licensing, possession, registration, and transportation of handguns and ammunition for handguns by [concealed handgun] licensees are exclusive powers and functions of the State. Any ordinance or regulation, or portion thereof, enacted on or before [July 9, 2013] that purports to impose regulations or restrictions on licensees or handguns and ammunition for handguns in a manner inconsistent with this Act shall be invalid in its application to licensees under this Act on [July 9, 2013]. This Section is a denial and limitation of home rule powers and functions under [Ill. Const., Art. VII, § 6(h)].11
Following these major alterations to local regulatory authority involving firearms, the permissible scope of cities and counties in Illinois to regulate firearms has narrowed. For further information about preemption in Illinois, please contact the Law Center directly.
- 2013 ILL. ALS 63, 2013 Ill. Laws 63, 2013 ILL. P.A. 63, 2013 ILL. HB 183. By way of background, 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 U.S. Seventh Circuit Court of Appeals 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, 554 U.S. 570 (2008), guarantees the individual right of a law-abiding citizen to possess a firearm in the home for self-defense. McDonald effectively rendered unconstitutional handgun possession bans in Chicago, Oak Park and other Illinois communities, to the extent that their bans restricted gun possession in the home for self-defense. Heller and McDonald also implicitly overruled (or at least diminished the impact of) Kalodimos v. Village of Morton Grove, 470 N.E.2d 266 (Ill. 1984), a key Supreme Court of Illinois decision that held 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. ⤴︎
- 430 Ill. Comp. Stat. 65/13.1(b). ⤴︎
- Id. ⤴︎
- 430 Ill. Comp. Stat. 65/13.1(c). ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- 430 Ill. Comp. Stat. 65/13.1 ⤴︎
- 65 Ill. Comp. Stat. 5/1-1-2(1). ⤴︎
- 430 Ill. Comp. Stat. 65/13.1(e). ⤴︎
- 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. See Ill. Const. Art. VII, § 6(g), (h), (i). To do this, the General Assembly must pass a statute expressly preempting home rule authority and stating what particular home rule powers are preempted. See, e.g., City of Chicago v. Roman, 705 N.E.2d 81, 86-89 (1998) (discussing preemption of home rule authority under Illinois constitution). A “home rule” unit is defined as a “[c]ounty 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). ⤴︎
- 430 Ill. Comp. Stat. 66/90. ⤴︎
In Indiana, the state has largely removed the ability of local governments to regulate firearms. Specifically, Indiana law prohibits local governments from regulating firearms, ammunition, or firearm accessories or the “ownership, possession, carrying, transportation, registration, transfer, and storage” or “commerce in and taxation of” these items.1
Limited exceptions to this comprehensive preemption statute allow local governments to:
- Authorize an employer to restrict an employee from carrying firearms and ammunition in the course of his or her official duties.2 However, employees may not be prohibited from storing a firearm in the trunk, glove compartment or other area out of sight of the employee’s locked vehicle.3 In 2014, Indiana repealed a law allowing local governments to prohibit school employees from carrying firearms on school property, buses or property being used for a school function.4
- 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.5
- Prohibit or restrict the possession of a firearm in buildings containing courtrooms and in hospitals.6 However, the local government may not prohibit or restrict the possession of firearms by concealed carry permittees in courthouses nor may they prohibit possession in the portion of the courthouse building occupied by a residential tenant or private business.7
- Enforce restrictions imposed by organizers of events on property leased by local governments.8
- Prohibit the possession of firearms in buildings owned by the locality if metal detection devices are located at each public entrance staffed by at least one law enforcement officer to inspect people and bags.9
In 2014, Indiana prohibited localities and law enforcement agencies from using public funds to purchase privately owned firearms via a “buyback program” if the purpose of the program is to reduce the number of civilian-owned firearms or to permit civilians to sell firearms to the government without fear of prosecution.10
In addition, Indiana has a version of an “extreme preemption” statute because it allows a person or organization to sue a local government for violation of the state’s preemption statute. The plaintiff may sue for damages (including liquidated damages in an amount three times the attorney’s fees), court costs and attorney’s fees.11 For more about “Extreme Preemption” laws, visit our policy page, Local Authority to Regulate Firearms.
- Ind. Code Ann. § 35-47-11.1. ⤴︎
- Ind. Code Ann. § 35-47-11.1-4(2). ⤴︎
- Ind. Code Ann. § 34-28-7-2(a). ⤴︎
- 2014 Indiana Senate Bill 229. ⤴︎
- Ind. Code Ann. § 35-47-11.1-4(4), (12). ⤴︎
- Ind. Code Ann. § 35-47-11.1-4(5). ⤴︎
- Ind. Code Ann. § 35-47-11.1-4(11). ⤴︎
- Ind. Code Ann. § 35-47-11.1-4(10). ⤴︎
- Ind. Code Ann. § 35-47-11.1-4(13). ⤴︎
- Ind. Code Ann. § 35-47-3.5. ⤴︎
- Ind. Code Ann. §§ 35-47-11.1-5, 35-47-11.1-7. ⤴︎
Iowa has enacted a broad preemption statute. Iowa Code § 724.28 prohibits political subdivisions (defined to mean 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. If a political subdivision enacts any type of regulation concerning the above subjects after July 1, 2017, Iowa law authorizes any “person adversely affected” by the regulation to file suit in court for “declaratory and injunctive relief for damages.”1
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.2
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.”3
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.4 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.5 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 724.28.6
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.7
- Iowa Code § 724.28(3). ⤴︎
- Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6. ⤴︎
- Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *2. ⤴︎
- Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *18. ⤴︎
- Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *18-*19. ⤴︎
- Id. ⤴︎
- Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *7, n2. ⤴︎
Kansas broadly preempts local governments from regulating firearms, ammunition, or any component of either. Localities are restricted as follows:
No city or county shall adopt or enforce any ordinance, resolution or regulation, and no agent of any city or county shall take any administrative action, governing the requirement of fees, licenses or permits for, the commerce in or the sale, purchase, transfer, ownership, storage, carrying, transporting or taxation of firearms or ammunition, or any component or combination thereof.1
In addition, in a specific provision, Kansas broadly preempts regulation of the carrying of concealed handguns.
No city, county or other political subdivision of this state shall regulate, restrict or prohibit the carrying of concealed handguns by individuals except as provided in [certain provisions of state law, discussed below]. Any existing or future law, ordinance, rule, regulation or resolution enacted by any city, county or other political subdivision of this state that regulates, restricts or prohibits the carrying of concealed handguns by individuals except as provided in [the provisions discussed below], shall be null and void.2
Localities may, however, regulate concealed weapons in public buildings. Carry of a concealed handgun may be prohibited in any state or municipal building if the building has adequate security measures, including electronic equipment and personnel, to ensure that no weapons are permitted to be carried into such building, and the building is conspicuously posted in accordance with rules and regulations adopted by the attorney general as a building where carrying a concealed handgun is prohibited.3 Public employers may also restrict or prohibit employees from carrying concealed handguns while on the premises of the employer’s business or while engaged in the duties of the person’s employment.4 In addition, city and counties may levy and collect retailers’ sales tax on the sale of firearms, ammunition or any component or combination thereof.5
In 2014, the legislature repealed a number of exceptions to the preemption law that allowed cities and counties to regulate openly carrying a loaded firearm, carrying firearms in jails and courthouses, and transporting firearms.6
Kansas also preempted local governments from suing firearm manufacturers and dealers for causes of action relating to the lawful design, manufacture, marketing or sale of firearms or ammunition to the public. Local governments are authorized, however, to sue for breach of contract or warranty, or for damages caused to employees of political subdivisions by defects in firearms or ammunition purchased or used by the political subdivision.7
Kansas prohibits local officials, during a state of emergency, from seizing any lawfully possessed firearm other than as evidence in a criminal investigation, or requiring registration of any firearm not required to be registered by state law. Individuals harmed by a violation of this prohibition may file suit and recover the seized firearm, damages and attorneys’ fees.8
Kansas limits the local regulation of sport shooting ranges. 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 is permitted to continue in operation even if operation of the range at a later date does not conform to the new regulation. In addition, a sport shooting range in existence on the effective date of the law (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, is permitted to make repairs, expand facilities, activities and membership.9 Local government may regulate the location and construction of the facilities. Kansas permits local governments to exercise eminent domain or easement powers over a permanent or improved sport shooting range only as necessary for infrastructure additions or improvements, such as highways, waterways or utilities.10
- Kan. Stat. Ann. § 12-16,124. ⤴︎
- Kan. Stat. Ann. § 75-7c17. ⤴︎
- Kan. Stat. Ann. § 75-7c10(b)(2); Kan. Stat. Ann. § 75-7c20; Kan. Stat. Ann. § 75-7c22. ⤴︎
- Kan. Stat. Ann. § 75-7c10(b)(1). ⤴︎
- Kan. Stat. Ann. § 12-16,124(c)(4). ⤴︎
- 2014 Kan. Sess. Laws 97. ⤴︎
- Kan. Stat. Ann. § 60-4501. ⤴︎
- Kan. Stat. Ann. § 48-959. ⤴︎
- Kan. Stat. Ann. § 58-3223. ⤴︎
- Kan. Stat. Ann. § 58-3224. ⤴︎
Kentucky law preempts several types of local firearms ordinances. In 2012, the state legislature amended Kentucky Revised Statutes Annotated § 65.870, which now states:
No existing or future city, county, urban-county government, charter county, consolidated local government, unified local government, special district, local or regional public or quasi-public agency, board, commission, department, public corporation, or any person acting under the authority of any of these organizations may occupy any part of the field of regulation of the manufacture, sale, purchase, taxation, transfer, ownership, possession, carrying, storage, or transportation of firearms, ammunition, components of firearms, components of ammunition, firearms accessories, or combination thereof.1
Prior to this 2012 amendment, Kentucky law stated: “No city, county or urban-county government may occupy any part of the field of regulation of the transfer, ownership, possession, carrying or transportation of firearms, ammunition, or components of firearms or combination thereof.”
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.”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:
[E]xpressly prohibits a city from enacting legislation in the area of the ownership, possession and carrying of firearms. Nor does the General Assembly provide any exception in [section 65.870] that would permit a city to regulate “concealable firearms.” Because the General Assembly bars municipalities from legislating in this area, the Louisville Ordinance is invalid.3
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, 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.4
Local regulatory authority in regard to carrying concealed weapons is also limited by section 237.110(19), which provides that:
The General Assembly finds as a matter of public policy that it is necessary to provide statewide uniform standards for issuing licenses to carry concealed firearms and to occupy the field of regulation of the bearing of concealed firearms to ensure that no person who qualifies under the provisions of [section 237.110] is denied his rights.
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.5 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.”6
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.7
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.8 These people may carry concealed firearms anywhere but detention facilities.9
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.”10 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.11
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.12
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.13 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.14
- KRS § 65.870. ⤴︎
- 93 Ky. Op. Att’y Gen. 71, 1993 Ky. AG LEXIS 179, at *2. ⤴︎
- 99 Ky. Op. Att’y Gen. 10, 1999 Ky. AG LEXIS 211, at *1-*2. ⤴︎
- 98 S.W.3d 517, 520 (Ky. Ct. App. 2002). ⤴︎
- KRS § 237.115(2). ⤴︎
- Id. ⤴︎
- KRS § 237.115(3). ⤴︎
- KRS § 237.115. ⤴︎
- KRS § 527.020. ⤴︎
- 96 Ky. Op. Att’y Gen. 39, 1996 Ky. AG LEXIS 79, at *5. ⤴︎
- Id. at *6-*7. ⤴︎
- KRS § 237.115(1). ⤴︎
- KRS § 237.104. ⤴︎
- Id. ⤴︎
Louisiana Revised Statutes Annotated § 40:1796 provides:
A. No governing authority of a political subdivision shall enact after July 15, 1985, any ordinance or regulation more restrictive than state law concerning in any way the sale, purchase, possession, ownership, transfer, transportation, license, or registration of firearms, ammunition, or components of firearms or ammunition; however, [section 40:1796] shall not apply to the levy and collection of sales and use taxes, license fees and taxes and permit fees, nor shall it affect the authority of political subdivisions to prohibit the possession of a weapon or firearm in certain commercial establishments and public buildings.
B. Nothing in [section 40:1796] shall prohibit a local governing authority in a high-risk area from developing a plan with federally licensed firearms manufacturers, dealers, or importers to secure the inventory of firearms and ammunition of those licensees in order to prevent looting of the licensee’s premises during a declared state of emergency or disaster. Such plan shall be renewed on a periodic basis. The information contained in the plan shall be deemed security procedures as defined in [section 44:3.1] and shall be released only to the sheriffs of the parishes or police chiefs of municipalities in which the declared state of emergency or disaster exists.1
In 2012, Louisiana also enacted a law to clarify that local ordinances regulating the carrying of firearms in public are subject to the provisions of La. Rev. Stat. § 40:1796 and may not be more restrictive than state law.2
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 defined by the statute. In addition, municipalities with a population in excess of 425,000 may initiate firearms buyback programs, subject to certain state guidelines.3
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.4
There is no relevant case law interpreting these statutes.
The Maine Legislature has adopted an express preemption statute which provides:
1. Preemption. The State intends to occupy and preempt the entire field of legislation concerning the regulation of firearms, components, ammunition and supplies. Except as provided in subsection 3, any existing or future order, ordinance, rule or regulation in this field of any political subdivision of the State is void.
2. Regulation restricted. Except as provided in subsection 3, no political subdivision of the State, including, but not limited to, municipalities, counties, townships and village corporations, may adopt any order, ordinance, rule or regulation concerning the sale, purchase, purchase delay, transfer, ownership, use, possession, bearing, transportation, licensing, permitting, registration, taxation or any other matter pertaining to firearms, components, ammunition or supplies.
3. Exception. This section does not prohibit an order, ordinance, rule or regulation of any political subdivision which, with the exception of appropriate civil penalty provisions, conforms exactly with any applicable provision of state law or which regulates the discharge of firearms within a jurisdiction.
4. Law Enforcement Agency. Nothing in this section limits the power of any law enforcement agency to regulate the type and use of firearms issued or authorized by that agency for use by its employees. For the purposes of this section “law enforcement agency” has the same meaning as set forth in section 3701.1
The adoption of express preemption rendered invalid many local ordinances regulating firearms.2 In addition to affecting regulations by cities and counties, section 2011 preempts firearms regulations by municipal agencies or authorities.3
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.4
Maine limits local regulation of shooting ranges. A municipal noise control or other 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 date of the ordinance, as long as the range conforms to generally accepted gun safety and shooting range operation practices or is constructed in a manner not reasonably expected to allow a projectile to cross the boundary of the range.5 Subject to some limitations, local governments are allowed, however, to regulate the location and construction of new sport shooting ranges or substantial change in use of existing ranges on or after September 1, 2016.6
Finally, a 2017 law also prohibits local governments (as well as state agencies) in Maine from keeping, or causing to be kept, a list or registry of privately owned firearms or firearm owners within their jurisdiction.8
- Me. Stat., 25, § 2011. ⤴︎
- 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). ⤴︎
- 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). ⤴︎
- Id. ⤴︎
- Me. Stat. § 3011(2). ⤴︎
- Id. at (3) and (4). ⤴︎
- Tit. 30-A, § 2005. ⤴︎
- 2017 ME HB 10, enacting Me. Stat. § 2014. ⤴︎
Maryland prohibits local governments from regulating the purchase, sale, taxation, transfer, manufacture, repair, ownership, possession and transportation of handguns, rifles, shotguns and ammunition.1 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 182; 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.3
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.4
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.5
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, 2001.6
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, 2005.7
- Md. Code Ann., Crim. Law § 4-209(a). ⤴︎
- See Md. Ann. Code art. 1, § 24 ⤴︎
- 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”). ⤴︎
- Montgomery County v. Atlantic Guns, 489 A.2d 1114, 1118 (Md. 1985). ⤴︎
- 76 Op. Att’y Gen. 240 (1991), 1991 Md. AG LEXIS 64. ⤴︎
- Md. Code Ann., Envir. § 3-105(a)(3). ⤴︎
- See sections 3-105(a)(4) and 3-401 for additional information. ⤴︎
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:
It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article.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.2 The Amendment does not, however, permit localities to criminalize behavior legalized by the legislature.3
The substance of the Amendment is rooted in Mass. Const. amend. art. II, § 6:
Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by [Const. amend. art. II, § 8], and which is not denied, either expressly or by clear implication, to the city or town by its charter. This section shall apply to every city and town, whether or not it has adopted a charter pursuant to [Const. amend. art. II, § 3].
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.4 The Massachusetts Supreme Judicial Court has set forth the following guidelines for determining whether a municipal ordinance is inconsistent with state law:
- If there is an express legislative intent to forbid local activity on the same subject, state law preempts local law;
- If the local regulation would frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject, state law preempts local law. Courts may infer that the Legislature intended to preempt the field of regulation if legislation on the subject is so comprehensive that any local enactment would frustrate the statute’s purpose; or
- State law preempts local law if there is a “sharp conflict” between the state legislation and the local law, which happens when the legislative intent to preclude local action is clear or the purpose of the statute cannot be achieved in the face of the local law.5
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.6 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.7
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.”8 .)) 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.9
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.”10 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.11
Finally, under the Amendment, municipalities generally are no longer required to seek authority from the state legislature to impose controls relative to zoning.12 Chapter 40A expressly recognizes local autonomy in dealing with land use and zoning issues.13
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.”14
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.15 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.16
- Mass. Const. amend. art. II, § 1. ⤴︎
- Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 741 N.E.2d 37, 43 (Mass. 2001). ⤴︎
- 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). ⤴︎
- Connors v. City of Boston, 714 N.E.2d 335 (Mass. 1999). ⤴︎
- Id. at 337-38. ⤴︎
- Town of Amherst, 502 N.E.2d at 131-32. ⤴︎
- Id. at 129. ⤴︎
- Id. at 130 (quoting Bloom v. Worcester, 363 Mass. 136, 156 (Mass. 1973 ⤴︎
- Id. at 131. ⤴︎
- Mass. Const. amend. art. II, § 7(6). ⤴︎
- 1989 Mass. Acts 596, §§ 1-7. ⤴︎
- Baldiga v. Board of Appeals of Uxbridge, 482 N.E.2d 809, 812 n.5 (Mass. 1985). ⤴︎
- Id. at 812, Zoning Bd. of Appeals of Wellesley v. Ardemore Apts. L.P., 767 N.E.2d 584, 593 n.22 (Mass. 2002). ⤴︎
- 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). ⤴︎
- Ch. 34A, § 16(A)(ii). ⤴︎
- Ch. 34A, § 16(B). ⤴︎
Michigan Compiled Laws Service Section 123.1102 provides:
A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state.1
Exceptions to Section 123.1102 include local legislation:
- Prohibiting or regulating conduct with a firearm or pneumatic gun that is a criminal offense under state law2;
- Prohibiting or regulating the transportation, carrying, or possession of firearms or pneumatic guns by employees of a local unit of government in the course of their employment with that local unit of government3; and
- Prohibiting the discharge of firearms or pneumatic guns (with some restrictions on the latter prohibition) within the jurisdiction of a city or charter township4.
In the 2003 case 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 sustained 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 if the ordinance directly conflicts with a state law.5
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,” namely, the carrying or possession of firearms.6 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 123.1102.7
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.8
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.9 While the opinion was supported by several statutes, the Attorney General found primary support for this conclusion in section 123.1102 – a statute which, in the Attorney General’s opinion, occupies the “field of firearm regulation.”10
- Mich. Comp. Laws Serv. § 123.1102. ⤴︎
- Mich. Comp. Laws Serv. § 123.1103 ⤴︎
- Id. ⤴︎
- Mich. Comp. Laws Serv. § 123.1104 ⤴︎
- Responsible Gun Owners, 662 N.W.2d at 868. ⤴︎
- Id. at 872. ⤴︎
- Id. at 872-874. ⤴︎
- Morgan, 473 F. Supp. 2d at 770 (emphasis in original). ⤴︎
- Mich. Op. Att’y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *8. ⤴︎
- Mich. Op. Att’y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *7. ⤴︎
Minnesota law1 removes nearly all regulatory authority from local governments in the areas of firearms, ammunition, or their respective components. However, the legislature has enacted various exceptions to preemption. Pursuant to these exceptions, local governments may legislate:
- The discharge of firearms;2
- In ways identical to state law;3
- The location of businesses where guns are sold by a firearms dealer if the regulations are reasonable, nondiscriminatory and nonarbitrary zoning ordinances;4 and
- Secondhand and junk dealers, although this authority is granted only to counties.5
School districts may regulate firearms as they relate to school grounds, facilities, transportation services, programs, or the conduct of students at any school activities.6 A school district may not, however, regulate the possession or carrying of firearms or ammunition by non-students or non-employees, in a manner that is inconsistent with a statute that generally prohibits possessing, storing, or keeping a firearm while knowingly on school property.7
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.8 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 school districts are expressly exempted from the firearm preemption statute, the later enactment of section 609.66 impliedly repealed the exemption 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.9 The court concluded the school district’s policy was not preempted by state law.
Other provisions of Minnesota law explicitly supersede all municipal and county regulation on:
- The transfer of handguns;10
- The ownership, possession, or operation of machine guns, trigger activators, machine gun conversion kit, and short-barreled shotguns;11
- The issuance of “transferee permits” allowing the holder to purchase handguns and semiautomatic military-style weapons;12
- The issuance, nature, and scope of permits to carry handguns;13
- The carrying and possession of handguns, and the regulation of “Saturday Night Special Pistols;”14 and
- Anything related to ammunition or its component parts.15
Minnesota law also specifies the authority of local units of government to regulate shooting ranges16: A shooting range that operates in compliance with “shooting range performance standards” [“National Rifle Association’s Range Source Book: A Guide to Planning and Construction”17] must be permitted to do all of the following within its geographic boundaries, under the same or different ownership or occupancy:
- Operate the range and conduct activities involving the discharge of firearms;
- Expand or increase its membership or opportunities for public participation related to the primary activity as a shooting range;
- Make those repairs or improvements desirable to meet or exceed requirements of shooting range performance standards;
- Increase events and activities related to the primary activity as a shooting range;
- Acquire additional lands to be used for buffer zones or noise mitigation efforts or to otherwise comply with this chapter; and
- Conduct shooting activities and discharge firearms daily between 7:00 a.m. and 10:00 p.m.18
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.19 Furthermore, nothing 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, 2005.20
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 restrictions21 and shooting range performance standards.22
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.23 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.24 Additionally, a state administrative regulation explicitly allows for local firearm use regulations on trails in outdoor recreation areas that are more restrictive than state regulations.25
Minnesota provides that “[n]otwithstanding any other law to the contrary,” federally licensed sellers may sell to residents of contiguous states and Minnesota residents may purchase firearms and ammunition in a contiguous state if lawful under 18 U.S.C. §§ 921 et seq.26
In 2015 the legislature enacted a law prohibiting government officials from the following during a state of emergency:
(1) prohibiting, regulating, or curtailing the otherwise lawful possession, carrying, transportation, transfer, defensive use, or other lawful use of any [firearms, ammunition, components and accessories];
(2) seizing, commandeering, or confiscating any of these items in any manner, [limited exceptions];
(3) suspending or revoking a valid permit to carry a handgun; or
(4) closing or limiting the operating hours of businesses that lawfully sell or service any of these items, unless such closing or limitation of hours applies equally to all forms of commerce.27
In addition, Minnesota has an “extreme preemption” statute because it allows a person to sue a government official personally—and seek damages and attorney fees—for allegedly violating the state’s preemption statute.28 For more about “Extreme Preemption” laws, visit our policy page, Local Authority to Regulate Firearms.
- Minn. Stat. § 471.633 ⤴︎
- Minn. Stat. § 471.633(a). ⤴︎
- Minn. Stat. § 471.633(b). ⤴︎
- Minn. Stat. § 471.635. ⤴︎
- Minn. Stat. § 471.924. 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. ⤴︎
- Minn. Stat. § 471.634. ⤴︎
- Minn. Stat. § 609.66, subd. 1d(g). ⤴︎
- In re the Expulsion of M.A.L., No. C8-02-739, 2002 Minn. App. LEXIS 1292 (Nov. 26, 2002). ⤴︎
- M.A.L., 2002 Minn. App. LEXIS 1292, at *6 -*8. ⤴︎
- Minn. Stat. § 624.7132, subd. 16. ⤴︎
- Minn. Stat. § 609.67, subd. 6. ⤴︎
- Minn. Stat. § 624.7131, subd. 12. ⤴︎
- Minn. Stat. § 624.714, subd. 23; In In re Application of Hoffman, 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. 430 N.W. 2d 210, 213 (Minn. Ct. App. 1988). ⤴︎
- Minn. Stat. § 624.717. ⤴︎
- Minn. Stat. § 624.7191, subd. 4. ⤴︎
- Minn. Stat. §§ 87A.01 et seq. ⤴︎
- Minn. Stat. § 87A.02. ⤴︎
- Minn. Stat. § 87A.03, subd. 1. ⤴︎
- Id. ⤴︎
- Minn. Stat. § 87A.08, subd. 1(a). ⤴︎
- Minn. Stat. § 87A.05. ⤴︎
- Minn. Stat. § 87A.03, subd. 2. ⤴︎
- Minn. Stat. § 87A.06. ⤴︎
- Minn. Stat. § 87A.08, subd. 1(a). ⤴︎
- Minn. R. 6100.4100. ⤴︎
- Minn. Stat. § 624.71. ⤴︎
- Minn. Stat. § 624.7192(c). ⤴︎
- Minn. Stat. § 624.7192(e). ⤴︎
Mississippi Code Annotated § 45-9-51(1) states that: “[s]ubject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts the possession, carrying, transportation, sale, transfer or ownership of firearms or ammunition or their components.” In addition, no public housing authority can restrict the lawful possession of firearms, ammunition or components.1
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:
- Use of property or location of businesses pursuant to fire code, zoning ordinances, or land-use regulations, so long as such codes, ordinances and regulations are not used to circumvent the intent of Section 45-9-51;
- Use of firearms in cases of insurrection, riots and natural disasters in which the city finds such regulation necessary to protect the health and safety of the public, except the county or municipality may not regulate the lawful possession of firearms or ammunition;
- Carrying of a concealed firearm at: 1) a public park or at a public meeting of a county, municipality or other governmental body; 2) a political rally, parade or official political meeting; or 3) a non-firearm-related school, college or professional athletic event;2 or
- Receipt of firearms by pawnshops.
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:
- Shotgun, air rifle, air pistol or BB gun discharged on a tract of land of ten acres or more and more than 150 feet from a residence or occupied building located on another property; or
- Center fire, rim fire, or muzzle-loading rifle or pistol discharged on a tract of land of 50 acres or more and more than 300 feet from a residence or occupied building located on another property.3
Mississippi allows for significant penalties to be levied against a public official who violates the state’s preemption law, including a personal fine of up to $1,000. The state also prohibits local funds from being used to defend the official and allows a prevailing plaintiff to recover attorney’s fees.4
Finally, counties or municipalities are prohibited from conducting a gun buy-back program unless the county or municipality has adopted an ordinance authorizing the program. The ordinance must require all guns acquired from the program to be sold to federally licensed firearms dealers.5
There is no case law interpreting either Section 45-9-51 or Section 45-9-53.
Mississippi Code Annotated § 33-7-303 details the power of the Governor to declare martial law, but explicitly states that the Governor (or any state official or employee) cannot confiscate or seize firearms, ammunition or components from a person who is in lawful possession of them, or impose additional restrictions as to the lawful possession, transfer, sale, carrying, storage, display or use of firearms, ammunition, or components.6
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 45-9-53.7
For similar reasons, the Attorney General also opined that the Jackson City Council has no authority to ban gun shows on the Mississippi State Fairgrounds (located in Jackson).8 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.9
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.”1 The statute states that all existing or future orders, ordinances, or regulations in this field are “null and void except as provided in subsection 3 of this section.”2
These exceptions created by subsection 3 allow political subdivisions to:
- Regulate the “open carrying of firearms readily capable of lethal use” (However, in 2014, this statute was amended to exempt “any person with a valid concealed carry endorsement or permit” from any local ordinance prohibiting the open carrying of firearms);
- Regulate the discharge of firearms; and
- Enact ordinances conforming exactly to the provisions of sections 571.010 through 571.070 of the Missouri Revised Statutes (these statutes pertain to various aspects of state firearms regulation, including the unlawful transfer of weapons, armed criminal action, the possession, manufacture, transport and repair of certain weapons, and the carrying of concealed weapons).3
Missouri Revised Statutes § 21.750(2) reiterates the preemption of all local regulation concerning firearms, stating:
No county, city, town, village, municipality, or other political subdivision of this state shall adopt any order, ordinance or regulation concerning in any way the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permit, registration, taxation other than sales and compensating use taxes or other controls on firearms, components, ammunition, and supplies except as provided in subsection 3.
In 2014, this statute was amended to include the following provision: “No ordinance shall be construed to preclude the use of a firearm in the defense of person or property . . . .”
In City of Cape Girardeau v. Joyce, the Court of Appeals of Missouri rejected a challenge to this statute under article 1, § 23 of the Missouri Constitution (the state “right to keep and bear arms”)4 The court stated:
Nothing in the Missouri constitution [sic] limits the power of the legislature to enact laws pertaining to the time, place and manner of carrying weapons. It is entirely proper for the General Assembly to recognize that the use and abuse of firearms are matters appropriately left to local control and to delegate its authority to regulate the carrying of firearms as is deemed necessary by political subdivisions of the state.5
Additionally, Missouri Revised Statutes § 21.750 precludes political subdivisions from filing certain lawsuits against the firearms industry.
In addition to the provisions of Missouri Revised Statutes § 21.750, the following specific statutory provisions remain on the books:
- Missouri grants authority to the councils of third class cities (cities and towns containing 3,000 or more inhabitants) and the boards of aldermen of fourth class cities (cities and towns that contain between 500 and 3,000 inhabitants or that contain more than 3,000 inhabitants and elect by majority vote to be treated as such) to “enact ordinances to . . . regulate, restrain, and prevent the discharge of firearms … in the streets or in the limits of the city”;6
- Missouri grants authority to the boards of trustees of villages and towns to “prohibit the firing of firearms”;7 and
- Missouri grants authority to the board of aldermen of a fourth class city “to adopt ordinances providing for the prohibition of and punishment for the carrying of concealed deadly weapons”8.
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.9
Montana removes local authority to regulate all but a few specific fields of firearms regulation. Montana Code Annotated § 45-8-351(1) provides that:
Except as provided in subsection (2), a county, city, town, consolidated local government, or other local government unit may not prohibit, register, tax, license, or regulate the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, possession, transportation, use, or unconcealed carrying of any weapon, including a rifle, shotgun, handgun, or concealed handgun.
Section 45-8-351(2)(a) provides the following exceptions:
- For public safety purposes, a city or town may regulate the discharge of rifles, shotguns, and handguns;
- A county, city, town, consolidated local government or other local government unit may “prevent and suppress” the carrying of concealed or unconcealed weapons in a public assembly, publicly owned building, park under its jurisdiction, or school; and
- A county, city, town, consolidated local government or other local government unit may “prevent and suppress” the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors.
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.1 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.2 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.3
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.
Furthermore, local ordinances may not prohibit a legislative security officer, who has been issued a concealed weapon permit, from carrying a concealed weapon in the state capitol.4
Section 45-8-351 does not restrict the powers of a self-governing city, however. The First Judicial District Court of Montana upheld the city of Helena’s ordinance prohibiting the possession of a loaded firearm in City of Helena v. Yetter, 1993 Mont. Dist. LEXIS 172 (1993). The court reasoned that the city had adopted a self-governing charter and the law does not “specifically state that it applies to local governments with self-government powers.”5 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.6
Additionally, section 7-1-111(9) prohibits local governments from exercising any power that “applies to or affects the right to keep or bear arms” except regulation of the carrying of concealed weapons.This language was originally codified in Section 47A-7-201 which was enacted in 1975.
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:
- Prevent the operation of an existing shooting range as a nonconforming use;
- Prohibit the establishment of new shooting ranges, although they may regulate the construction of shooting ranges to specified zones; or
- Prevent the erection or construction of safety improvements on existing shooting ranges.
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 an opportunity to respond, as well as a reasonable opportunity to correct any safety defects.7 An established shooting range may be relocated, however, if all of the following conditions are met:
- A pressing public need exists because of incompatibility with nearby population or land use;
- The pressing public need is documented through hearings, testimony, and a clear and precise statement of need; and
- The agency or unit of local government pays the appraised cost of the land (together with improvements) to the operators of the shooting range.8
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.”9 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.”10 Finally, section 45-8-111(6) 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 reserves for the state the right to bring suit against a firearms or ammunition manufacturer, trade association, or dealer. This has the effect of restricting the ability of local governments in Montana to bring such suits. Please see the Montana Immunity Statutes section for further details.
- 42 Mont. Op. Att’y Gen. 8 (1987), 1987 Mont. AG LEXIS 42, *4-5. ⤴︎
- Id. at *6-8. ⤴︎
- Id. at *8-9. ⤴︎
- Mont. Code Ann. § 45-8-351(2)(c). ⤴︎
- Id. at *2. ⤴︎
- Mont. Const. art. XI, § 6. ⤴︎
- Mont. Code Ann. § 76-9-105(1), (3). ⤴︎
- Mont. Code Ann. § 76-9-105(2). ⤴︎
- Mont. Code Ann. § 7-5-2109(1)(b). ⤴︎
- Mont. Code Ann. § 7-5-2111(4). ⤴︎
State Preemption of Local Firearms Laws
Nebraska generally preempts local governments from regulating firearms except in limited circumstances discussed below.
Nebraska grants the following limited authority to local jurisdictions to regulate firearms:
- Cities of 300,000 or more inhabitants may “punish and prevent the carrying of concealed weapons, except the carrying of a concealed handgun in compliance with the Concealed Handgun Permit Act…and the discharge of firearms, other than the discharge of firearms at a shooting range pursuant to the Nebraska Shooting Range Protection Act.”1;
- Cities with between 100,000 and 300,000 inhabitants may “prevent use of firearms…and prohibit carrying of concealed weapons” consistent with the Concealed Handgun Permit Act.2;
- Cities with between 5,000 and 100,000 inhabitants may “regulate, punish, and prevent the discharge of firearms…in the streets, lots, grounds, and alleys or about or in the vicinity of any buildings…[and] regulate, prevent, and punish the carrying of concealed weapons” consistent with the Concealed Handgun Permit Act;3 and
- Cities with between 800 and 5,000 inhabitants may “regulate, punish, and prevent the discharge of firearms…in the streets, lots, grounds, alleys, or about or in the vicinity of any buildings [and] regulate, prevent, and punish the carrying of concealed weapons” consistent with the Concealed Handgun Permit Act.4
Furthermore, state law specifically prohibits cities and villages from requiring registration of a concealed handgun owned, possessed, or transported by a permitholder under the Concealed Handgun Permit Act.5 It is unclear whether the state’s gun laws preempt local handgun registration requirements for handguns kept in the home that would not require a concealed carry permit. 6
Local Regulation of Handgun Purchases
Regarding the purchase of handguns, Nebraska Revised Statutes 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. Local regulations enacted before September 6, 1991 are 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.”7 Apart from handguns covered by the Concealed Handgun Permit Act, it is not clear whether new local regulations concerning the transfer of handguns would be preempted by state law.
Local Regulation of Shooting Ranges
Nebraska also precludes localities from regulating certain aspects of shooting ranges. 8 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.9 Any discharge-related laws adopted by local governments that would apply to the discharge of a firearm at an existing shooting range are unenforceable.10 Local jurisdictions have authority to “punish and prevent” the discharge of firearms other than discharge at a shooting range.11
Any noise-related regulations adopted by local governments that would apply to an existing shooting range are also prohibited.12
A city, county, village or other political subdivision may limit the hours between 10:00 p.m. and 7:00 a.m. that an outdoor shooting range may operate.13
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.14
Preemption Generally in Nebraska
There are no cases addressing preemption of local firearms regulation by the state. Accordingly, to determine whether a local law regulating firearms is preempted by state law, the following information about preemption in Nebraska may be useful.
Nebraska generally authorizes cites with over 300,000 inhabitants to make ordinances:
[N]ot inconsistent with the general laws of the state, as may be necessary or expedient, in addition to the special powers otherwise granted by law, for maintaining the peace, good government, and welfare of the city and for preserving order, securing persons or property from violence, danger, and destruction, for protecting public and private property, for promoting the public health, safety, convenience, comfort, morals, and general interests, and welfare of the inhabitants of the city.15
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.)
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.16
- Neb. Rev. Stat. §§ 14-101, 14-102(6). ⤴︎
- Neb. Rev. Stat. § 15-255. ⤴︎
- Neb. Rev. Stat. § 16-227. ⤴︎
- Neb. Rev. Stat. § 17-556. ⤴︎
- Neb. Rev. Stat. § 18-1703. ⤴︎
- See Neb. Rev. Stat. , §§ 69-2401, et seq. ⤴︎
- See, e.g., Omaha Municipal Code, §§ 20-251 et seq., requiring registration of concealable handguns, except those for which a concealed handgun permit has been obtained. ⤴︎
- Neb. Rev. Stat. § 37-1301 et seq. ⤴︎
- Neb. Rev. Stat. § 37-1304. ⤴︎
- Neb. Rev. Stat. § 37-1306. ⤴︎
- Neb. Rev. Stat. § 14-102(6). ⤴︎
- Neb. Rev. Stat. § 37-1305. ⤴︎
- Neb. Rev. Stat. § 37-1308. ⤴︎
- Neb. Rev. Stat. § 37-1310(1). ⤴︎
- Neb. Rev. Stat. § 14-102.01. ⤴︎
- State ex rel. City of Alma v. Furnas County Farms, 667 N.W.2d 512, 522-23 (Neb. 2003). ⤴︎
The Nevada Legislature has broadly preempted cities, towns, and counties from regulating firearms. Nevada Revised Statutes Annotated sections 268.418, 244.364, and 269.222 provide that, except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, carrying, ownership, transportation, registration and licensing of firearms and ammunition in Nevada. No city, town or county may infringe upon those rights and powers.
The state allows cities, towns, and counties to regulate firearms in limited circumstances. Cities, towns, and counties, may regulate:
- The “unsafe discharge of firearms;”
- Carrying of firearms by public employees during or in the course of official duties; and
- Firearms business via zoning or business regulations that are generally applicable to businesses within the county including, indoor or outdoor shooting ranges.1
Nevada imposes strong penalties for violation of sections 268.418, 244.364, and 269.222. A plaintiff who successfully sues to enforce these sections is entitled to attorney’s fees and liquidated damages in an amount equal to two or three times the actual damages. Nevada’s preemption laws also allow membership organizations, such as the National Rifle Association, to sue to enforce the statutes.
There are no cases interpreting sections 268.418, 244.364, and 269.222.
- Nev. Rev. Stat. Ann. §§§ 268.418, 244.364, and 269.222. ⤴︎
New Hampshire Rev. Stat. Ann. § 159:26(I) provides in part:
To the extent consistent with federal law, the state of New Hampshire shall have authority and jurisdiction over the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, firearms supplies, or knives in the state. Except as otherwise specifically provided by statute, no ordinance or regulation of a political subdivision may regulate the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, or firearms supplies in the state.
Section 159:26 does not affect a local government’s right to adopt non-discriminatory zoning ordinances.1 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.2
The ability of local governments in New Hampshire to impose limits on noise and noise pollution from shooting ranges is limited by New Hampshire Rev. Stat. Ann. §§ 159-B:1-159-B:8. See the Immunity Statutes section of the New Hampshire state page for further information.
Article 4, § VII, par. 11 of the New Jersey State Constitution confers broad powers on municipalities and counties:
The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.
State statutes treat municipalities and counties differently in terms of their local regulatory authority, however.
A. Municipal Regulatory Authority
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…”1 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.”2 In 1973, the New Jersey Supreme Court recognized that N.J. Stat. Ann. § 40:48-2 grants municipalities “broad police power over matters of local concern and interest.”3 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.”4
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.5 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.”6
In Overlook Terrace Management Corp. v. Rent Control Board of West New York,7 the Supreme Court of New Jersey created, in 1976, 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.”8 If the subject matter is not the same, “preemption is clearly inapplicable.”9 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:
- Whether the ordinance conflicts with state law, either because of conflicting policies or operational effect (i.e., does the ordinance forbid what the legislature has permitted or permit what the legislature has forbidden?);
- Whether the legislature intended, expressly or impliedly, that state law be exclusive in the field;
- Whether the subject matter reflects a need for uniformity;
- Whether the state scheme is so pervasive or comprehensive that it precludes the coexistence of municipal regulation; and
- Whether the ordinance stands “as an obstacle to the accomplishment and execution of the full purposes and objectives” of the legislature.10
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.11
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:
Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code.
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.12
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.13
Township of Chester v. Panicucci,14) is the most authoritative case concerning municipal power to regulate firearms in New Jersey. In Panicucci, the Supreme Court of New Jersey, in 1973, 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.” ((Id. 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.15
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 pronouncements by the Supreme Court of New Jersey (in decisions not involving firearm regulation) do suggest, however, that local firearm ordinances are valid regulations not preempted by state law.
For example, in State v. Crawley, the Supreme Court of New Jersey 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.”16 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.”17
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.18 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 appeal was still pending.19
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.
B. County Regulatory Authority
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.
- N.J. Stat. Ann. § 40:48-1(18). ⤴︎
- N.J. Stat. Ann. § 40:48-2. ⤴︎
- Twp. of Chester v. Panicucci, 299 A.2d 385, 387-88 (N.J. 1973). ⤴︎
- N.J. Stat. Ann. § 40:41A-28. ⤴︎
- Summer v. Teaneck, 251 A.2d 761, 764 (N.J. 1969). ⤴︎
- Id. ⤴︎
- 366 A.2d 321 (N.J. 1976). ⤴︎
- Id. at 326. ⤴︎
- Id. ⤴︎
- See, e.g., Mack Paramus Co. v. Mayor and Council of Borough of Paramus, 511 A.2d 1179, 1184-86 (N.J. 1986). ⤴︎
- See State v. Crawley, 447 A.2d 565 (N.J. 1982). ⤴︎
- See Mack Paramus Co., supra note 10. ⤴︎
- 299 A.2d 385 (N.J. 1973 ⤴︎
- Id. at 390. ⤴︎
- Crawley, 447 A.2d at 569-70. ⤴︎
- Id. at 570. ⤴︎
- Faraci, 2010 N.J. Super. Unpub. LEXIS 151, at *10-*11. ⤴︎
- See Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 992 A.2d 1 (N.J. 2010). ⤴︎
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, § 6.1 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.2 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, § 6.3
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.4 Further, the opinion defines an article II, § 6 “incident” of the right to keep and bear arms to include the transfer of weapons.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.”6
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.1 State courts have found the regulation of weapons to be a legitimate exercise of local police power.2
In DJL Restaurant Corp. v. City of New York,3 a non-firearms case from 2001, the New York Court of Appeals (the highest court in 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.4 Conflict occurs when local law prohibits conduct which the state either allows or does not proscribe, or imposes additional restrictions on rights granted by state law.5 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.”6
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 the 1999 case People v. Stagnitto, the New York Court of Appeals 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.”7
In the 1968 case Grimm v. City of New York,8 a court determined that New York City’s licensing and registration law regarding rifles and shotguns was not preempted by state law.9 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.”10
In a 1994 case, Citizens for a Safer Community v. City of Rochester,11 the New York Superior 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.12 “Clearly, the State has not, either directly or indirectly, regulated all aspects of gun possession and use as to time, place and circumstance.”13 However, the court also held 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).14
In the 2014 case, De Illy v. Kelly,15, a New York appellate 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 the state law regulating premise licenses,16 does not permit licensees to transport weapons, the law has not otherwise preempted the entire field, and the local law is merely an acceptable supplement to state law in this area.17
Some New York courts have found certain firearm ordinances to be preempted by state law. Most significantly, in the 2010 case Matter of Chwick v Mulvey,18, 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.19 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.20
In the 1968 case People v. Kearse,21, 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.22 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.”23 (Emphasis added by the court.)
Finally, in People v. Del Gardo,24, the court 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.”25
- N.Y. Const. art. IX, § 2(c), N.Y. Mun. Home Rule Law § 10(1)(i), (ii). ⤴︎
- See, e.g., People v. Stagnitto, 691 N.Y.S.2d 223 (N.Y. App. Div. 1999) (upholding city ordinance regulating assault weapons). ⤴︎
- 749 N.E.2d 186 (N.Y. 2001). ⤴︎
- Id. at 190. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Stagnitto, 691 N.Y.S.2d at 225; see also 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) (rejecting 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.”). ⤴︎
- 289 N.Y.S.2d 358 (N.Y. Sup. Ct. Queens Co. 1968). ⤴︎
- Id. at 363. ⤴︎
- Id. ⤴︎
- 627 N.Y.S.2d 193 (N.Y. Sup. Ct. 1994). ⤴︎
- Id. at 201-02. ⤴︎
- Id. ⤴︎
- Citizens for a Safer Community, 627 N.Y.S.2d at 206. ⤴︎
- 775 N.Y.S.2d 256 (N.Y. App. Div. 2004). ⤴︎
- N.Y. Penal Law § 400.00(2)(a). ⤴︎
- Id. at 256-57. ⤴︎
- 915 N.Y.S.2d 578 (N.Y. App. Div. 2010). ⤴︎
- Id. at 587. ⤴︎
- Id. ⤴︎
- 289 N.Y.S.2d 346 (N.Y. City Ct., Syracuse 1968). ⤴︎
- Id. at 350-51. ⤴︎
- Id. at 352. ⤴︎
- 146 N.Y.S.2d 350 (City Magis. Ct. Manhattan 1955). ⤴︎
- Id. at 354. (Emphasis added by the court.). ⤴︎
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.1
Section 14-409.40(b) specifically prohibits all local governments from regulating “in any manner the possession, ownership, storage, transfer, sale, purchase, licensing, taxation, manufacture, transportation, 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:
- With respect to firearms sales, cities and counties may enact non-discriminatory regulations or prohibitions of such sales at locations if there is a “lawful, general, similar regulation or prohibition of commercial activities” at the location;2
- Cities and counties may enact general zoning plans that prohibit commercial activity within a fixed distance of a school or other educational institution without a special use permit issued for a commercial activity found not to pose a danger to the public health and safety of those attending that school or institution;3
- Cities and counties may apply the authority they are given under certain specified state statutes to regulate or prohibit possession of firearms in, or on the grounds or in the parking areas of, publicly owned buildings, public parks, or recreation areas;4
- A local government may adopt an ordinance to prohibit, by posting, the carrying of a concealed handgun on a municipal and county playground, athletic field, swimming pool, or athletic facility, although a concealed handgun permittee may still secure a handgun within the trunk, glove box, or other enclosed compartment or area of a locked vehicle. Local governments are expressly prohibited from enacting other ordinances, rules, or regulations concerning legally carrying a concealed handgun;5
- Cities and counties may regulate the transportation, carrying, and possession of firearms by their employees in the course of that employment;6
- Cities and counties continue to have emergency powers as specified by statute, (though North Carolina generally prevents cities and counties from enacting prohibitions or restrictions on lawfully possessed firearms or ammunition during states of emergency);7
- Counties may regulate or prohibit the discharge of firearms at any time or place, except when lawfully used to take animals or in defense of person or property;8
- Cities may regulate or prohibit the discharge of firearms at any time or place except when used in defense of person or property;9
- Cities and counties may regulate the display of firearms on public roads, sidewalks, alleys or other public property;10
- Cities and counties may regulate or prohibit the sale, possession or use of pellet guns;11 and
- Cities and counties may levy privilege license taxes on firearms dealers.12
North Carolina also generally preempts local regulation concerning carrying a concealed handgun. Section 14-415.23 declares:
It is the intent of the General Assembly to prescribe a uniform system for the regulation of legally carrying a concealed handgun. To insure uniformity, no political subdivisions, boards, or agencies of the State nor any county, city, municipality, municipal corporation, town, township, village, nor any department or agency thereof, may enact ordinances, rules, or regulations concerning legally carrying a concealed handgun. A unit of local government may adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun, in accordance with G.S. 14-415.11(c), on local government buildings and their appurtenant premises. A unit of local government may adopt an ordinance to prohibit, by posting, the carrying of a concealed handgun on municipal and county recreational facilities that are specifically identified by the unit of local government. If a unit of local government adopts such an ordinance with regard to recreational facilities, then the concealed handgun permittee may, nevertheless, secure the handgun in a locked vehicle within the trunk, glove box, or other enclosed compartment or area within or on the motor vehicle. For purposes of this section, the term “recreational facilities” includes only the following: a playground, an athletic field, a swimming pool, and an athletic facility.“
The Sport Shooting Range Act of 199713 permits shooting ranges that were lawfully in operation on September 1, 1994 to continue in operation even if the range at a later date does not conform to a new or amended local ordinance.14 The Act does not prohibit a local government from regulating the location and construction of new sport shooting ranges.15
An individual may sue to enforce the state’s preemption laws if he or she has been adversely affected by a local firearms law. In addition to damages, the prevailing party is entitled to recover reasonable attorney’s fees incurred as a result of the lawsuit.16
See the North Carolina Immunity Statutes section for information regarding lawsuits by local governments against the gun industry.
- N.C. Gen. Stat. § 14-409.40(a). ⤴︎
- N.C. Gen. Stat. § 14-409.40(c). ⤴︎
- Id. ⤴︎
- N.C. Gen. Stat. §14-409.40(f). Persons are not prohibited by Section 14-409.40(f) from lawfully storing firearms within a motor vehicle when the vehicle is in any of these public locations. ⤴︎
- N.C. Gen. Stat. §14-415.23. ⤴︎
- N.C. Gen. Stat. § 14-409.40(e). ⤴︎
- N.C. Gen. Stat. §§ 14-409.40(f), 166A-19.31. ⤴︎
- N.C. Gen. Stat. § 153A-129. ⤴︎
- N.C. Gen. Stat. § 160A-189. ⤴︎
- N.C. Gen. Stat. §§ 160A-189 (cities), 153A-129 (counties). ⤴︎
- N.C. Gen. Stat. §§ 160A-190 (cities), 153A-130 (counties). ⤴︎
- N.C. Gen. Stat. §§ 160A-211 (cities), 153A-152 (counties). ⤴︎
- N.C. Gen. Stat. §§ 14-409.45 – 14-409.47 ⤴︎
- N.C. Gen. Stat. § 14-409.46(e). ⤴︎
- N.C. Gen. Stat. § 14-409.47. ⤴︎
- N.C. Gen. Stat. § 14‑409.40(h); 14‑415.23. ⤴︎
North Dakota’s broad preemption statute, North Dakota Century Code § 62.1-01-03, states:
A political subdivision, including home rule cities or counties, may not enact any ordinance relating to the purchase, sale, ownership, possession, transfer of ownership, registration, or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void.
N.D.C.C. § 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, with some exceptions.1
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.2)
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 at 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.3 However, a political subdivision may regulate the location and construction of a sport shooting range after August 1, 1999.4 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 Immunity Statutes in North Dakota section for further information regarding the impact of section 42-01-01.1 on litigation against shooting ranges.
Please see the Local Authority to Regulate Firearms policy summary for a general discussion of this issue, as well as the Federal Preemption section of our federal law materials.
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.”1 Charter counties may also be organized as municipal corporations, and possess all the police powers granted to cities and villages.2
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 the enactment of a general law that conflicts with a given local ordinance.3
Ohio Revised Code Annotated § 9.68 took effect in March 2007. 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.
The City of Cleveland challenged section 9.68 as a violation of Article XVIII, § 3. Despite the expansive home rule authority Article XVIII grants to municipalities, the Ohio Supreme Court upheld Section 9.68 in 2010.4 The Supreme Court found section 9.68 met each prong of 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, providing 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.
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.”5 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 banning possession of certain high-capacity semi-automatic firearms 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 semi-automatic firearm with the capacity to fire more than ten rounds. The defendant argued that the city’s ban was in conflict with state law which banned 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 found no 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.”6.)) 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.7
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.8 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 non-charter 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.
- Ohio Const. Art. XVIII, §§ 1 and 3. ⤴︎
- Ohio Const. Art. X, § 3. ⤴︎
- Fondessy Enterprises, Inc. v. City of Oregon, 492 N.E.2d 797, 799-800 (Ohio 1986). ⤴︎
- City of Cleveland v. Ohio, 128 Ohio St. 3d 135, 2010-Ohio-6318, 942 N.E.2d 370. ⤴︎
- Fondessy Enterprises, Inc. v. City of Oregon, 492 N.E.2d 797, 801 (Ohio 1986). ⤴︎
- Id. at ¶ 20 (quoting Cincinnati v. Hoffman, 285 N.E.2d 714, 719 (Ohio 1972 ⤴︎
- Cincinnati v. Baskin, 112 Ohio St. 3d 279, 2006-Ohio-6422, 859 N.E.2d 514, at ¶ 23. ⤴︎
- McDonald v. City of Columbus, 231 N.E.2d 319, 320-22 (Ohio Ct. App. 1967). ⤴︎
Oklahoma has a detailed preemption statute that provides:
The State Legislature hereby occupies and preempts the entire field of legislation in this state touching in any way firearms, knives, components, ammunition, and supplies to the complete exclusion of any order, ordinance, or regulation by any municipality or other political subdivision of this state. Any existing or future orders, ordinances, or regulations in this field, except as provided for in paragraph 2 of this subsection and subsection C of this section, are null and void.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, knives, components, ammunition, and supplies.”2 In 2012, the state also added language to its preemption statute clarifying that “the otherwise lawful open carrying of a handgun under the provisions of the Oklahoma Self-Defense Act shall not be punishable by any municipality or other political subdivision of [Oklahoma] as disorderly conduct, disturbing the peace or similar offense against public order.”3
Municipalities may, however, adopt an ordinance:
- Relating to the discharge of firearms within the jurisdiction; or
- Allowing the municipality to issue a traffic citation for transporting a loaded pistol in a vehicle without a valid concealed handgun permit, provided however, that penalties contained for violation of such ordinance shall not exceed the penalties established in the Oklahoma Self-Defense Act.4
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.”5 No municipal ordinance relating to transportation of a firearm or knife improperly may include a provision for confiscation of property.6
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 or unconcealed handguns.”7
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.8 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.9
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.10
In 2012, Oklahoma adopted a law prohibiting municipal and state officials from prohibiting or suspending the sale, ownership, possession, transportation, carrying, transfer, and storage of firearms, ammunition, and ammunition accessories during a declared state of emergency, that are otherwise legal under state law. 11
- Okla. Stat. Ann. tit. 21, § 1289.24(A)(1). ⤴︎
- Okla. Stat. Ann. tit. 21, § 1289.24(B). ⤴︎
- Okla. Stat. Ann. tit. 21, § 1289.24(A)(3). ⤴︎
- Okla. Stat. Ann. tit. 21, § 1289.24(A)(2). ⤴︎
- Okla. Stat. Ann. tit. 21, § 1289.24(C). ⤴︎
- Id. ⤴︎
- Okla. Stat. Ann. tit. 21, § 1290.25. ⤴︎
- OK Op. Att’y Gen. No. 95-96, 1996 Okla. AG LEXIS 32 (April 24, 1996). ⤴︎
- 1996 Okla. AG LEXIS 32, *2-*3. ⤴︎
- OK Op. Att’y Gen. No. 03-46, 2003 Okla. AG LEXIS 41 (Nov. 3, 2003). ⤴︎
- Okla. Stat. Ann. tit. 21, § 1321.4(B). ⤴︎
The Oregon Legislature has specifically preempted certain areas of firearms regulation. Oregon Revised Statutes § 166.170 states:
(1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.
(2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition. Ordinances that are contrary to this subsection are void.
Local jurisdictions do have authority to enact the following specific firearm-related regulations:
- Cities have the power to regulate, restrict or prohibit the discharge of firearms within the city’s boundaries, provided the ordinances do not apply to or affect, inter alia, a person discharging a firearm in the lawful defense of person or property, or on a public or private shooting range, shooting gallery or other area designed and built for the purpose of target shooting1;
- Cities may also regulate the purchase of used firearms by pawnshops and secondhand stores2; and
- Cities and counties may adopt ordinances regulating, restricting or prohibiting the possession of loaded firearms in public places, provided the ordinances do not apply to or affect, inter alia, a law enforcement officer or member of the military in the performance of official duties, a person licensed to carry a concealed handgun, or a person authorized to possess a loaded firearm while in or on a public building or court facility3.
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.4.
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:
- In the lawful defense of person or property;
- In the course of lawful hunting;
- As a landowner or guest of a landowner, when the discharge will not endanger adjacent persons or property;
- On a public or private shooting range, shooting gallery or other area designed and built for the purpose of target shooting;
- In the course of target shooting on public land that is not inside an urban growth boundary or the boundary of a city, if the discharge will not endanger persons or property; or
- Who is an employee of the U.S. Department of Agriculture discharging a firearm in the course of the lawful taking of wildlife, within the scope of his or her employment.5
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, 1995.6 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 166.171.7 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.8
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.9 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.10 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.”11
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 166.173.12
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).13 The court held that section 166.245 permitted local regulation of the possession, but not the sale, of firearms and ammunition.14
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 166.245.15 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.16
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.”17
In State v. Ward, 198 P.3d 443 (Or. Ct. App. 2008), the Court of Appeals of Oregon rejected a preemption challenge to a Portland ordinance that regulates the possession of loaded firearms on streets and highways, even if the gun was kept in a place to which the general public had no access. The defendant challenged his conviction for possession of a loaded firearm in a public place, arguing that Or. Rev. Stat. § 166.173 restricts local governments from prohibiting the carrying of a loaded firearm within a car on a public street.18 The appellate court concluded that nothing in the statute supported defendant’s contention that a loaded firearm, when carried in a public place, was outside the scope of local regulation merely because it was kept in a place to which the general public lacked access.19
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.20 This legislative decision displaced the city’s ordinance.21
- section 166.172 ⤴︎
- section 166.175 ⤴︎
- section 166.173 ⤴︎
- Section 166.174 ⤴︎
- Section 166.171. ⤴︎
- Section 166.176. ⤴︎
- Section 166.176. ⤴︎
- Section 197.770(2). ⤴︎
- Section 467.136. ⤴︎
- Langlotz, 39 P.3d at 274. ⤴︎
- Langlotz, 39 P.3d at 274. ⤴︎
- Starrett, 102 P.3d 728 at 733. ⤴︎
- Oregon State Shooting Ass’n, 858 P.2d at 1322-23. ⤴︎
- Id. at 1323. ⤴︎
- Oregon State Shooting Ass’n, 858 P.2d at 1323-24. ⤴︎
- Id. at 1323. ⤴︎
- Medford Sch. Dist., 549C, 221 P.3d at 799. ⤴︎
- Ward, 198 P.3d at 444-45. ⤴︎
- Id. at 445. ⤴︎
- Id. at 417-418. ⤴︎
- Id. at 418. ⤴︎
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.”1
Section 6120(a) has been interpreted to preempt local ordinances banning assault weapons. In Ortiz v. Commonwealth, the Supreme Court of Pennsylvania struck down local assault weapon bans in Philadelphia and Pittsburgh under what is now subsection 6120(a).2 The court found that the legislature had “denied all municipalities the power to regulate the ownership…transfer or possession of firearms.”3 The court stated that the Pennsylvania Constitution “requires that home rule municipalities…not perform any power denied by” the legislature.4 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.”5
Similarly, in Schneck v. Philadelphia, a lower court held that section 6120(a) preempted a city ordinance requiring a license for the acquisition of a firearm within the city.6
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.7 Later, in Minich v. County of Jefferson, the court rejected a claim that the county lacked authority to enact the same ordinance.8 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.9
In Clarke v. House of Representatives, an intermediate appellate court held that section 6120(a) preempted several firearm-relatedordinances enacted by the City of Philadelphia in May of 2007.10 These ordinances would have:
- Limited handgun purchases to one per month;
- Mandated the reporting of lost or stolen firearms;
- Required a local license to acquire a firearm or bring a firearm into Philadelphia;
- Required annual renewal of this license;
- Allowed a firearm to be confiscated from someone posing a risk of harm;
- Prohibited the possession or transfer of assault weapons; and
- Required anyone selling ammunition to report the ammunition and the purchaser to the police department.
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.11 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.”12 This decision was affirmed, without a published opinion, by the Supreme Court of Pennsylvania.13
In Nat’l Rifle Assn. v. Philadelphia, an intermediate appellate court held that section 6120(a) preempted two firearm-related ordinances adopted by Philadelphia in June 2008. ((Nat’l Rifle Assn. v. Philadelphia, 977 A.2d 78, 78-83 (Pa. Commw. Ct. 2009).)) 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.14 The Supreme Court of Pennsylvania refused to hear the case on appeal, thereby affirming the decision without a written opinion.15
In 2015, Pennsylvania enacted a law granting membership organizations– such as the NRA– standing to enforce section 6120(a). It also allows a plaintiff to recover attorney’s fees if successful in the lawsuit.16
Section 6120(a.1) provides:
(1) No political subdivision may bring or maintain an action at law or in equity against any firearms or ammunition manufacturer, trade association or dealer for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to either the lawful design or manufacture of firearms or ammunition or the lawful marketing or sale of firearms or ammunition to the public.
(2) Nothing in this subsection shall be construed to prohibit a political subdivision from bringing or maintaining an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision.17
Section 6120(a.1) has been held to preclude negligence suits by local jurisdictions against gun manufacturers. In Philadelphia v. Beretta, 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, thereby harming Philadelphia’s residents.18 Liability was predicated on the defendants’ alleged negligence and the creation of a public nuisance.19
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.”20 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, holding that “the power to regulate firearms within the state [by legislation or litigation] now lies exclusively with the state legislature.”21
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.”22
Cities in Pennsylvania, however, may regulate the “unnecessary firing and discharge of firearms in or into the highways and other public places.”23 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.”24 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 “[t]o the extent permitted by Federal and other State law…regulate, prohibit, and prevent the discharge of guns…within the city and … prevent the carrying of concealed deadly weapons.”25
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.26
Title 53, Pa. Stat. Ann. § 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 galleries27
For more general information on this topic, see our summary on Local Authority to Regulate Firearms.
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.
- 18 Pa. Cons. Stat. Ann. § 6120(a). ⤴︎
- Ortiz v. Commonwealth, 681 A.2d 152, 155 (Pa. 1996). ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Id. at 156. ⤴︎
- Schneck v. Philadelphia, 383 A.2d 227 (Pa. Commw. Ct. 1978); see also U.S. Law Shield of Pa., LLC v. City of Harrisburg, 2015 Pa. Dist. & Cnty. Dec. LEXIS 21 (Pa. County Ct. 2015) (granting plaintiffs’ preliminary injunction against a city ordinance prohibiting the possession of firearms). ⤴︎
- 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”). ⤴︎
- Minich v. County of Jefferson, 919 A.2d 356 (Pa. Commw. Ct. 2007). ⤴︎
- Id. ⤴︎
- Clarke v. House of Representatives, 957 A.2d 361 (Pa. Commw. Ct. 2008). ⤴︎
- Id. at 364. ⤴︎
- Id. at 364-65. ⤴︎
- Clarke v. House of Representatives, 980 A.2d 34 (Pa. 2009). ⤴︎
- Id. at 82-83. ⤴︎
- NRA v. City of Philadelphia, 606 Pa. 677 (2010). ⤴︎
- Pa.C.S. § 6120(a.3). ⤴︎
- 18 Pa. Cons. Stat. Ann. § 6120(a.1). ⤴︎
- Philadelphia v. Beretta, 126 F. Supp. 2d 882 (E.D. Pa. 2000), aff’d, 277 F.3d 415 (3d Cir. 2002). ⤴︎
- Id. ⤴︎
- Id. at 892. ⤴︎
- Id. at 890. ⤴︎
- 53 Pa. Cons. Stat. Ann. § 2962(g). ⤴︎
- 53 Pa. Stat. Ann. § 3703. ⤴︎
- 53 Pa. Stat. Ann. § 23131. ⤴︎
- 53 Pa. Stat. Ann. § 37423. ⤴︎
- 16 Pa. Stat. Ann. § 6107-C(k). ⤴︎
- 53 Pa. Stat. Ann. § 56531. ⤴︎
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.1 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.2
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.3
The South Carolina Legislature comprehensively preempts local firearm and ammunition laws. South Carolina’s statute provides, in part, that:
No governing body of any county, municipality, or other political subdivision in the State may enact or promulgate any regulation or ordinance that regulates or attempts to regulate…the transfer, ownership, possession, carrying, or transportation of firearms, ammunition, components of firearms, or any combination of these things.1
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.2
Three express exceptions exist to South Carolina’s preemption provisions. Counties, municipalities and other political subdivisions in South Carolina may regulate the:
- Careless or negligent discharge of firearms;
- Public brandishment of firearms; and
- Public brandishment of firearms during times of insurrection, invasions, riots or natural disasters, or when there is a demonstrated potential for such events.3
State law also expressly denies any county, municipality or political subdivision the power to confiscate a firearm or ammunition unless incident to arrest.4
There are no cases interpreting sections 23-31-510 or 23-31-520. In 2009, the South Carolina Attorney General was asked whether section 23-31-510 prohibits a county ordinance that bans the possession of guns in county parks.5 The Attorney General stated 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.”6
The South Carolina Attorney General has also stated that under sections 23-31-510 and 23-31-520, an ordinance that prohibits the sale of firearms within city limits would not be authorized.7
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.8 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.9 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 or three years after a substantial change in usage of the range.10
A county, municipal, or state noise control ordinance, rule, or regulation may not:
- Require or be applied to require a shooting range to limit or eliminate shooting activities that occurred on a regular basis before January 1, 2000;
- Be applied to a shooting range that was in compliance with a noise control ordinance as of the date of the establishment of the shooting range, provided there has been no substantial change in the use of the range subsequently; or
- Be applied to a shooting range that was in existence prior to the enactment of a noise control ordinance, rule, or regulation, provided there has been no substantial change in the use of the range.11
A local government is not otherwise prohibited from regulating the location and construction of a new shooting range after May 1, 2000.12
- S.C. Code Ann. § 23-31-510. ⤴︎
- S.C. Code Ann. § 23-31-510(2). ⤴︎
- S.C. Code Ann. § 23-31-520. ⤴︎
- S.C. Code Ann. § 23-31-520. ⤴︎
- 2009 S.C. AG LEXIS 38 (March 5, 2009). ⤴︎
- 2009 S.C. AG LEXIS 38 (March 5, 2009), *8-*9. ⤴︎
- 1991 S.C. AG LEXIS 218 (October 3, 1991). ⤴︎
- S.C. Code Ann. § 31-18-30(A). ⤴︎
- Id. ⤴︎
- S.C. Code Ann. § 31-18-30(B). ⤴︎
- S.C. Code Ann. § 31-18-40. ⤴︎
- S.C. Code Ann. § 31-18-50. ⤴︎
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 Code Annotated § 39-17-1314(a) states that “the general assembly preempts the whole field of the regulation of firearms, ammunition, or components of firearms or ammunition, or combinations thereof including, but not limited to, the use, purchase, transfer, taxation, manufacture, ownership, possession, carrying, sale, acquisition, gift, devise, licensing, registration, storage, and transportation thereof, to the exclusion of all county, city, town, municipality, or metropolitan government law, ordinances, resolutions, enactments or regulation. No county, city, town, municipality, or metropolitan government nor any local agency, department, or official shall occupy any part of the field regulation of firearms, ammunition or components of firearms or ammunition, or combinations thereof.”
Local regulation is permitted where explicitly provided by Tennessee Code Annotated § 39-17-1314(b) or other state laws.1 Subsection (b) generally allows local regulation of:
- The carrying of firearms by local government employees or independent contractors when acting in the course and scope of their employment or contract;
- The discharge of firearms within the limits of the city, county, town municipality or metropolitan government;
- The location of shooting ranges; and
- The enforcement of state or federal firearm and ammunition laws.
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.2
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.3 For more information about this statute, see our page on Immunity Statutes in Tennessee.
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.4 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.5 The Attorney General has also opined that while municipal regulations are 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.6
In 2014, the state enacted a law prohibiting local governments from regulating the possession, transportation or storage of a firearm or firearm ammunition by a handgun carry permit holder in such person’s vehicle while utilizing public or private parking areas.7
In 2015, the state removed the authority of any municipality or county to prohibit, by resolution adopted by a majority vote of its legislative body, persons authorized to carry a concealed handgun from possessing the handgun while within a public park that is owned or operated by the municipality or county.8
In 2017, Tennessee enacted a law authorizing parties to bring suit against local governments if they are adversely affected by an ordinance, resolution, policy, rule, or other enactment that is adopted or enforced by the local government, or its agencies or officers, in violation of the state’s preemption law.9
The 2017 law also clarified that local governments are generally prohibited from preventing concealed carry permit holders from possessing handguns on property owned or administered by the local government unless the building provides metal detectors and security officers at each public entrance to the building; the security officers must also inspect the bag, package, or container that is entering the building through the public entrance when the building is open to the public.10 However, these public building requirements do not apply to specified buildings, including schools, colleges or universities, libraries, licensed mental health and substance abuse facilities, law enforcement agency buildings, and courtrooms.11
- Tenn. Code Ann. § 39-17-1314(a). ⤴︎
- Tenn. Code Ann. § 39-17-1359(a). ⤴︎
- Tenn. Code Ann. § 39-17-1314(d)(1), (2). ⤴︎
- Op. Att’y Gen. 04-020, 2004 Tenn. AG LEXIS 20 (Feb. 9, 2004). ⤴︎
- Opinion No. 04-020, at *1-*2, *6. ⤴︎
- Op. Att’y Gen. 09-118, 2009 Tenn. AG LEXIS 154 (June 12, 2009). ⤴︎
- Tenn. Code Ann. § 39-17-1313(a). ⤴︎
- 2015 TN H.B. 995, amending Tenn. Code Ann. § 39-17-1311. ⤴︎
- 2017 TN HB 508; Tenn. Code Ann. § 9-17-1314. ⤴︎
- Tenn. Code Ann. § 39-17-1359(g). ⤴︎
- Id. ⤴︎
Texas law broadly preempts municipalities from regulating firearms, including: “(1) the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies; or (2) the discharge of a firearm or air gun at a sport shooting range.”1 Municipalities retain the authority to:
- Require residents or public employees to be armed for personal or national defense, law enforcement or another lawful purpose;
- Regulate the discharge of firearms or air guns within the limits of the municipality, other than at a sport shooting range;
- Regulate the use of property, the location of a business, or uses at a business under the municipality’s fire code, zoning ordinance, or land-use regulations as long as the code, ordinance, or regulations are not used to circumvent the intent of the preemption statute;
- Regulate the use of firearms or air guns in the case of an insurrection, riot, or natural disaster if the municipality finds the regulations necessary to protect public health and safety (this exception does not authorize the seizure or confiscation of firearms or ammunition from any person in lawful possession of firearms or ammunition;
- Regulate the carrying of a firearm or air gun by a person other than a person licensed to carry a concealed handgun under Texas law at: 1) a public park; 2) a public meeting of a municipality, county, or other governmental body; 3) a political rally, parade or official political meeting; or 4) a non-firearms-related school, college, or professional athletic event. (This exception does not apply if the firearm is in or carried to or from an area designated for use in a lawful hunting, fishing, or other sporting event and the firearm is of the type commonly used in the activity.)2 The Attorney General has interpreted this exception to mean that municipalities are prohibited from regulating the carrying of concealed handguns in city parks by persons licensed to carry a handgun;3
- Regulate the hours of operation of a sport shooting range, except that the hours of operation may not be more limited than the least limited hours of operation of any other business in the municipality other than a business permitted or licensed to sell or serve alcoholic beverages for on-premises consumption;4 or
- Regulate the carrying of an air gun by a minor on public property or on private property without the consent of the property owner.5
While there are no cases interpreting these statutory preemption provisions, the Texas Attorney General has issued a formal opinion that a Houston ordinance which was aimed at preventing children from discharging firearms was not preempted.6 The Houston ordinance also prohibited an adult from facilitating or permitting the discharge or possession of a firearm by allowing a child to obtain unsupervised access to a firearm.7 In essence, the ordinance regulated the keeping and storing of firearms by adults.8 The Attorney General determined that the ordinance did not violate the preemption statute because home rule cities like Houston possess broad powers of self-government. The preemption statute 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.9
More recently, the Attorney General issued an opinion that certain municipalities may prohibit the discharge of certain firearms or other weapons on property located within their original corporate limits.10
The Attorney General also issued an opinion that municipal housing authorities are subject to the preemption statute 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.11
In 2015, the legislature prohibited an agency or political subdivision from excluding from government property a concealed handgun license holder carrying a gun unless firearms are prohibited on the premises by state law.12 Moreover, the 2015 law allows individuals who believe they have been harmed by a local government violation of the state’s preemption statute to file a complaint of violation with the Texas attorney general, who may file suit against the agency or political subdivision13 to collect civil penalties14 and expenses, including attorney fees.15
Texas also limits the ability of a governmental official to enforce a municipal ordinance, order or rule regulating noise against a sport shooting range.16 See the Texas Immunity Statutes section for further information.
Counties are also preempted from regulating: (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.17
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.18
However, Texas permits the commissioners courts to 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.”19
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.20
The Texas Attorney General has issued an opinion that counties may prohibit concealed handgun license holders from carrying concealed handguns in county parks,21 and that a rapid transit authority may prohibit concealed handgun licensees from carrying handguns while on public transportation.22
- Tex. Local Gov’t Code § 229.001(a). ⤴︎
- Tex. Local Gov’t Code 229.001(c). ⤴︎
- Tex. Op. Att’y Gen. DM-364 (1995), 1995 Tex. AG LEXIS 94, *10-11. ⤴︎
- Tex. Local Gov’t Code 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). ⤴︎
- See also, Tex. Local Gov’t Code §§ 342.003(a)(8), 342.003(b) (under Fire Regulations statute, subject to preemption restrictions (Tex. Local Gov’t Code § 229.001), a municipality may “prohibit or otherwise regulate the use of fireworks and firearms….” ⤴︎
- Tex. Local Gov’t Code § 215.001 (now section 229.001); Texas Ltr. Op. Att’y Gen. 94-56 (1994), 1994 Tex. AG LEXIS 13. ⤴︎
- Id. at *2. ⤴︎
- Id. ⤴︎
- Id. at *3-4. ⤴︎
- Tex. Op. Att’y Gen. GA-0862 (2011), 2011 Tex. AG LEXIS 33. ⤴︎
- Tex. Op. Att’y Gen. DM-71 (1991), 1991 Tex. AG LEXIS 87, *10. ⤴︎
- Tex. Gov’t Code § 411.209(a); see, 2015 Tex. Op. Att’y Gen. KP-0049 (Texas Attorney General found that section 411.209 would prevent a governmental entity from prohibiting handguns from a place where handguns may be lawfully carried “through oral or written notice that does not conform” to statutory language). ⤴︎
- Tex. Gov’t Code § 411.209(d)-(f). ⤴︎
- Tex. Gov’t Code § 411.209(b) (civil penalties of $1,000-$1,500 for the first violation, $10,000-$10,500 for the second violation), (c) (“Each day of a continuing violation … constitutes a separate violation”). ⤴︎
- Tex. Gov’t Code § 411.209(g) (also, “court costs …, investigative costs, witness fees, and deposition costs”). ⤴︎
- Tex. Local Gov’t Code § 250.001. ⤴︎
- Tex. Local Gov’t Code § 236.002. ⤴︎
- Tex. Local Gov’t Code § 235.023. ⤴︎
- Tex. Local Gov’t Code § 235.022. ⤴︎
- Tex. Local Gov’t Code § 291.010(c). ⤴︎
- Tex. Op. Att’y Gen. DM-364 (1995), 1995 Tex. AG LEXIS 94, *11; Tex. Local Gov’t Code § 331.007. ⤴︎
- Tex. Op. Att’y Gen. DM-364 (1995), 1995 Tex. AG LEXIS 94, at *4-6. ⤴︎
- Tex. Local Gov’t Code § 250.001. ⤴︎
The District of Columbia has broad authority to regulate firearms. The District derives its delegated legislative powers from the Home Rule Act1), 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:
The Council of the District of Columbia is hereby authorized and empowered to make … all such usual and reasonable police regulations…as the Council may deem necessary for the regulation of firearms, projectiles, explosives, or weapons of any kind in the District of Columbia.
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 19752, 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)3) 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.4
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.]”5 Finding no “direct and positive” conflict between the District’s gun control regulations and the Home Rule Act, the court stated:
[A] parallel enactment in a given area cannot be stricken simply because it expands the scope of restrictions imposed by a parent legislative body. The Firearms Act, much like the predecessor gun control regulations upheld in Pistol Ass’n, fits within the general pattern of antecedent congressional enactments.6
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:
The important consideration, we think, is not whether the legislature and municipality have both entered the same field, but whether in doing so they have clashed. Statutory and local regulation may coexist in identical areas although the latter, not inconsistently with the former, exacts additional requirements, or imposes additional penalties.7
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). Although Heller did not invalidate other gun control laws enacted by the District of Columbia, Brown v. United States, 979 A.2d 630, 638 (D.C. 2009), the District must now take this right into consideration when adopting new firearm-related laws. For more information on the Heller case, see the Law Center’s materials on the Second Amendment
- D.C. Code Ann. § 1-201.01 et seq. Pursuant to Article I, section 8, clause 17 of the Constitution, and the Home Rule Act, Congress retains the power to override legislation enacted by the District of Columbia, either by passing a resolution of disapproval before such legislation becomes law, or by passing a bill to modify or repeal it after goes into effect. §§ 1.206.01 et seq; See Bliley v. Kelly, 23 F.3d 507, 508 (Ct. App. D.C.Cir. 1994 ⤴︎
- § 7-2501.01 et seq. ⤴︎
- § 1-206.02(a)(9 ⤴︎
- McIntosh, 395 A.2d at 753. ⤴︎
- Id. ⤴︎
- McIntosh, 395 A.2d at 753. ⤴︎
- Maryland & District of Columbia Rifle and Pistol Ass’n, Inc., 442 F.2d at 130. ⤴︎
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.”1
Section 53-5a-102, adopted in 2004, also elaborates upon this policy. It provides, in part:
(2) Except as specifically provided by state law, a local authority or state entity may not: (a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual’s place of residence, property, business, or in any vehicle lawfully in the individual’s possession or lawfully under the individual’s control; or (b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.2
(3) In conjunction with Title 76, Chapter 10, Part 5, Weapons, this section is uniformly applicable throughout this state and in all its political subdivisions and municipalities.
(4) All authority to regulate firearms is reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities.
(5) Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property.
(6) As used in this section: (a) “firearm” has the same meaning as defined in Subsection 76-10-501(9); and (b) “local authority or state entity” includes public school districts, public schools, and state institutions of higher education.
(7) Nothing in this section restricts or expands private property rights.
Section 10-8-47 specifically grants city boards of commissioners and city councils the authority to “regulate and prevent the discharge of firearms…”3 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.4
In the 2006 case Univ. of Utah v. Shurtleff,5, the Supreme Court of Utah held that the University of Utah was subject to section 53-5a-102(5). 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—did not prevent the application of section 53-5a-102(5) to the University, and that the University’s policy prohibiting students, faculty, and staff from carrying firearms on campus was preempted.6
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.”7 The Board has authorized all Utah State Higher Education institutions to establish these areas.8 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.9
- Utah Code Ann. § 78B-4-511. ⤴︎
- Utah Code Ann. § 53-5a-102. ⤴︎
- Utah Code Ann. § 10-8-47. ⤴︎
- Utah Code Ann. § 76-8-311.1, 311.3. ⤴︎
- 144 P.3d 1109 (Utah 2006). ⤴︎
- Id. at 1121-22. ⤴︎
- Utah Code Ann. § 53B-3-103(2)(ii)(A); Utah Admin. Code r. 765-254-3. ⤴︎
- Utah Admin. Code r. 765-254-3. ⤴︎
- Utah Code Ann. § 53B-3-103(2)(ii)(B). ⤴︎
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.”1
Vermont Statutes Annotated Title 24, § 2295 states:
Except as otherwise provided by law, no town, city or incorporated village, by ordinance, resolution or other enactment, shall directly regulate hunting, fishing and trapping or the possession, ownership, transportation, transfer, sale, purchase, carrying, licensing or registration of…firearms, ammunition or components of firearms or ammunition. This section shall not limit the powers conferred upon a town, city or incorporated village under section 2291(8) of this title. The provisions of this section shall supersede any inconsistent provisions of a municipal charter.2
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.3
In Hunters, Anglers & Trappers Association of Vermont v. Winooski Valley Park District, the Vermont Supreme Court held that section 2295 did not prohibit a union municipal district from banning hunting and trapping on district-owned property. 4 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.”5 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.6 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.7
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.8
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.9 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.”10 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.11
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.12
Several Vermont cities have municipal charters that specifically grant city bodies the authority to regulate or prohibit the possession and use of firearms.13 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, 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.14 The court explicitly stated that it did not need to decide whether section 2291 also authorized the ordinance.15
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.16 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.17
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.18 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.19 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.20
- Vt. Stat. Ann. tit. 24, § 2291(8). ⤴︎
- Vt. Stat. Ann. tit. 24, § 2295. ⤴︎
- Vt. Stat. Ann. tit. 24, § 131 et seq. ⤴︎
- 913 A.2d 391 (Vt. 2006). ⤴︎
- Id. at 397. ⤴︎
- Id. ⤴︎
- Id. at 398-99. ⤴︎
- 1997 Vt. AG LEXIS 1, Op. Vt. Att’y Gen. 97-2 (July 23, 1997). ⤴︎
- 1997 Vt. AG LEXIS 1, Op. Att’y Gen. 97-2 at *2. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Vt. Stat. Ann. tit. 16, § 1166(b). ⤴︎
- See, e.g., Vt. Stat. Ann. tit. 24A, §§ 17-2.4(b)(4), 257-305(29). ⤴︎
- 689 A.2d 427, 429 (Vt. 1996). ⤴︎
- Id. ⤴︎
- Vt. Stat. Ann. tit. 10, § 5227(b). ⤴︎
- Vt. Stat. Ann. tit. 10, § 5227(c). ⤴︎
- Vt. Stat. Ann. tit. 10, § 5227(e)(1). ⤴︎
- Id. ⤴︎
- Vt. Stat. Ann. tit. 10, § 5227(e)(2). ⤴︎
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:
A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by [section] 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in [section] 9.1-101 from acting within the scope of his duties.
The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.
B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.
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 15.2-915.1
Furthermore, in 2012, the legislature amended the preemption statute to prohibit a local government from adopting a workplace rule that prevents an employee of the locality from storing a lawfully possessed firearm in the employee’s locked car which is parked at the workplace.2
Virginia expressly authorizes the following types of local firearm ordinances:
- Counties may prohibit the outdoor shooting of firearms in areas so heavily populated as to make such conduct dangerous to the inhabitants3;
- Counties may impose limited prohibitions on possession of a loaded firearm on public highways4;
- Municipalities and counties may prohibit hunting with firearms in or within one-half mile of any area so heavily populated as to make such hunting dangerous to the inhabitants5;
- Cities and counties may prohibit the transportation, possession or carrying of loaded shotguns or rifles in any vehicle on any public street, road, or highway6;
- Municipalities may prohibit the discharge of firearms, and may require the maintenance of safety devices on storage equipment for firearms7;
- Cities and counties may prohibit the hunting of any game bird or game animal with a firearm on or within 100 yards of any primary or secondary highway8;
- Counties, cities and towns may prohibit shooting or hunting with a firearm, or prohibit hunters from traversing an area while in possession of a loaded firearm, within 100 yards of any property line of a public school or a county, city, town or regional park9;
- Cities and counties may prohibit hunting with a shotgun loaded with slugs, or with a rifle of a caliber larger than .22 rimfire10; and
- Certain Northern Virginia cities and counties may adopt local ordinances regulating the possession and storage of firearms, ammunition, or components or combination thereof at child-care facilities, so long as such regulation is not more extensive in scope than comparable state regulations applicable to family day-care homes.11
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.12 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.13
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:
- In Stallings v. Wall, 367 S.E.2d 496, 498 (Va. 1988), the Supreme Court of Virginia, ruled that an ordinance requiring a permit to buy a handgun was “implied in and incident to the grant of police power” set forth in that provision. The Supreme Court’s decision in Stallingsprompted the General Assembly’s adoption of the original section 15.2-915 (previously § 15.1-29-15).
- In Op. Att’y Gen. Va. 29 (1994), 1994 Va. AG LEXIS 4, the Attorney General examined a York County ordinance regulating shooting ranges. The Attorney General concluded that since the law “imposes no obligation on the individual owner of any firearm,” nothing in section 15.2-915 (previously § 15.1-29-15), or any other statute, prohibits any of these regulations.14
- In Op. Att’y Gen. Va. 94 (1997), 1997 Va. AG LEXIS 24, the Attorney General opined that a person desiring to bring a firearm, including a concealed handgun permitted under section 18.2-308(H), into a community center facility or police station can be required to register and provide information about the firearm involved under a county ordinance, and that such a law is not preempted by former section 15.2-915.
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:
Notwithstanding any other provision of law to the contrary, each school division may develop and implement procedures addressing disciplinary actions against students, and may establish disciplinary policies prohibiting the possession of firearms on school property, school buses, and at school-sponsored activities.
Finally, section 15.2-915.1 states:
No locality shall have the authority to bring suit against a firearms or ammunition marketer, manufacturer, distributor, dealer, seller, or trade association for damages, abatement, injunctive relief or any other remedy resulting from or relating to the lawful design, marketing, manufacture, distribution, sale, or transfer of firearms or ammunition to the public. The right to bring any such action is hereby reserved exclusively to the Commonwealth. Any action brought by the Commonwealth pursuant to this section shall be brought by the Attorney General on behalf of the Commonwealth.
This section shall not prohibit (i) a locality from bringing an action against a firearms or ammunition marketer, manufacturer, distributor, dealer, seller, or trade association for breach of contract or warranty or negligence as to firearms or ammunition purchased by the locality or (ii) an action for injuries resulting from negligence or breach of warranty or contract.
The provisions of this section applicable to a locality shall also apply equally to any state governmental entity, including a department, agency, or authority.
Additionally, in 2012, Virginia enacted a law prohibiting local governments or government agents from conducting a gun buy-back program unless the governing body of the locality enacted an ordinance authorizing the buy-back. Furthermore, any guns purchased from a buy-back must be re-sold to a licensed firearms dealer.15
- Va. Code Ann. § 15.2-915(C). ⤴︎
- Va. Code Ann. § 15.2-915(A). ⤴︎
- Va. Code Ann. § 15.2-1209. ⤴︎
- Va. Code Ann. § 15.2-1209.1. ⤴︎
- Va. Code Ann. §§ 15.2-1113.1, 15.2-1210. ⤴︎
- Va. Code Ann. § 15.2-915.2. ⤴︎
- Va. Code Ann. § 15.2-1113. ⤴︎
- Va. Code Ann. § 29.1-526. ⤴︎
- Va. Code Ann. § 29.1-527. ⤴︎
- Va. Code Ann. § 29.1-528. ⤴︎
- Va. Code Ann. § 15.2-914. ⤴︎
- 2010 Va. ALS 495 (amending Va. Code Ann. § 15.2-1207). ⤴︎
- Id. (repealing former Va. Code Ann. § 15.2-1206). ⤴︎
- Op. Att’y Gen. Va. 29 (1994), 1994 Va. AG LEXIS 4, *6-*7. ⤴︎
- Va. Code Ann. § 15.2-915.5 ⤴︎
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.”1 The Washington Legislature, however, has limited the authority of local governments to regulate firearms. Washington Revised Code Ann. § 9.41.290 states:
The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.2
Despite the limitations of section 9.41.290, the Supreme Court of Washington has held that this section was not intended to preempt reasonable rules regarding the possession of weapons in the public workplace.3 In Cherry v. Municipality of Metropolitan Seattle, the court held that a municipal employer has the authority to regulate or prohibit employee possession of firearms while on the job.4 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.”5 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.”6
Additionally, section 9.41.300(2) provides that cities, towns, counties and other municipalities may enact ordinances restricting:
- The discharge of firearms in any portion of their respective jurisdiction where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized; and
- The possession of firearms in any stadium or convention center, operated by a city, town, county, or other municipality, except that such restriction shall not apply to:
Any pistol in the possession of a person licensed to do so under state law or exempt from the licensing requirement; or
Any showing, demonstration, or lecture involving the exhibition of firearms.7
Further, under section 9.41.300(3), cities, towns, and counties may:
- Enact ordinances restricting the areas in their respective jurisdictions in which firearms may be sold, but a business selling firearms may not be treated more restrictively than other businesses located within the same zone. An ordinance requiring the cessation of business within a zone shall not have a shorter grandfather period for businesses selling firearms than for any other businesses within the zone; and
- Restrict the location of a business selling firearms to not less than 500 feet from primary or secondary school grounds, if the business has a storefront, has hours during which it is open for business, and posts advertisements or signs observable to passers-by that firearms are available for sale. A business selling firearms that exists as of the date a restriction is enacted under this provision shall be grandfathered according to existing law.8
Finally, 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.
In Pacific Northwest Shooting Park Ass’n v. City of Sequim, the Supreme Court of Washington held that a city may indeed 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.”9 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.10
In contrast, however, the Washington Court of Appeals held in Chan v. City of Seattle, 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.11 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.12 Moreover, the court asserted that 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.13
Washington courts have also upheld local authority to regulate the discharge of firearms. In City of Seattle v. Ballsmider, a Washington appellate court held that an ordinance prohibiting discharge of a firearm in Seattle did not violate section 9.41.290.14
- Wash. Const. Art. XI, § 11. ⤴︎
- Wash. Rev. Code Ann. § 9.41.290. ⤴︎
- Cherry v. Municipality of Metropolitan Seattle, 808 P.2d 746, 750 (Wash. 1991). ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- 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). ⤴︎
- Wash. Rev. Code Ann. § 9.41.300(2). ⤴︎
- Wash. Rev. Code Ann. § 9.41.300(3). ⤴︎
- 144 P.3d 276, 282-83 (Wash. 2006). ⤴︎
- Id. at 283. ⤴︎
- 164 Wash. App. 549, 562 (Wash. Ct. App. 2011). ⤴︎
- Chan, 164 Wash. App. at 565. ⤴︎
- Id. at 563. ⤴︎
- 856 P.2d 1113 (Wash. Ct. App. 1993. ⤴︎
West Virginia law broadly preempts the power of local governments to regulate firearms or ammunition. Specifically, the statute prohibits municipalities from:
[B]y ordinance or otherwise, limit[ing] the right of any person to purchase, possess, transfer, own, carry, transport, sell or store any revolver, pistol, rifle or shotgun or any ammunition or ammunition components to be used therewith [or] regulat[ing] the keeping of gunpowder so as to directly or indirectly prohibit the ownership of the ammunition in any manner inconsistent with or in conflict with state law.1
The exceptions to preemption authorize a municipality to prohibit or regulate the:
- carry or possession of a firearm in municipal buildings;
- carry or possession of a firearm openly or that is not lawfully concealed in municipal recreational facilities. The municipality may not, however, prohibit a person with a concealed handgun permit from carrying an otherwise lawfully possessed firearm into a municipally owned recreation facility if the firearms are stored securely out of view and access to others during their time at the facility; and
- carry or possession of firearms on municipally owned property other than buildings and recreational facilities by individuals without concealed carry licenses.2
These exceptions are further limited by the following conditions:
- The terms of an ordinance regulating firearms at municipal buildings and recreation facilities must be posted at the building or facility; and
- A person may keep an otherwise lawfully possessed firearm in a motor vehicle in municipal public facilities if the vehicle is locked and the firearm is out of view.
Additionally, municipalities are not authorized to restrict the lawful carrying of firearms on public streets unless pedestrian or vehicular traffic is prohibited in an area for the purpose of a temporary event. In that case, individuals with concealed handgun licenses may be prohibited from possessing a firearm in the event area.3
West Virginia generally grants municipalities the general power to enact and enforce ordinances to “arrest, convict and punish” individuals for illegally carrying or possessing handguns.4
County commissions, like municipalities, are denied authority to regulate the purchase, possession, transfer, ownership, carrying, transportation, sale or storage of firearms and ammunition. However, this provision does not prohibit local governments from regulating “the commercial use of real estate in designated areas through planning or zoning ordinances.”5
See the West Virginia Immunity Statutes section for information regarding lawsuits by local governments against the gun industry.
Wisconsin significantly limits the authority of local governments to regulate firearms. Wisconsin Statute § 66.0409(2) provides that no political subdivision (defined as a city, village, town, or county1.) may enact an ordinance or adopt a resolution that:
[R]egulates the sale, purchase, purchase delay, 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, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.
Notwithstanding this prohibition, there are limited ways local governments may regulate firearms:
- Sales and Use Taxes: 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.”2
- Discharge: Cities, villages, or towns authorized to exercise village powers under section 60.22(3) may impose restrictions on the discharge of firearms.3 However, any ordinance or resolution that restricts firearms discharge is inapplicable if the actor’s conduct “is justified” or would be subject to a privileged defense from criminal liability.4
- Pre-November 18, 1995 Ordinances: Political subdivisions may continue to enforce any ordinance or resolution in effect on November 18, 1995 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.5 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, 1995.6
- Construction of sport shooting ranges: Political subdivisions are not preempted 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.7 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.”
Wisconsin law also restricts local governments’ ability to regulate sport shooting ranges. Section 895.527(4) provides that any sport shooting range in existence on July 16, 2013 may continue to operate as a sport shooting range at its current location, notwithstanding various zoning codes,8 if the sport shooting range is a lawful use or a legal nonconforming use under any zoning ordinance in effect on July 16, 2013.9 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:
- Section 167.30 (prohibiting discharge of a firearm near parks), section 941.20(1)(d) (prohibiting discharge of a firearm within 100 yards of any building “devoted to human occupancy”), section 948.605 (gun free school zone provisions) or any rule promulgated under those sections regulating or prohibiting the discharge of firearms;
- The power of a city, village or town to enact ordinances or adopt resolutions restricting the discharge of a firearm (per section 66.0409(3)(b)); or
- Any zoning ordinance that is enacted, or resolution that is adopted, under local governmental powers pursuant to sections 59.69, 60.61, 60.62, 61.35 or 62.23(7) that is related to noise.10
However, 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.11
In the absence of criminal or malicious intent, a person may not be charged with violating a local ordinance relating to disorderly conduct for loading, carrying, or going armed with a firearm.12
The Court of Appeals of Wisconsin has interpreted local government’s ability to enact and enforce zoning ordinances that apply to sport shooting ranges under portions of both section 66.0409 and section 895.527.13 In Town of Avon v. Oliver, the court upheld the Town of Avon’s permanent injunction prohibiting defendant property owner from using a portion of his land as a sport shooting range because the 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.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.15 Furthermore, the court found that portions of sections 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, 1998.16 The court found that the defendant’s use was not lawful as of that date and thus held that the town could permanently enjoin use of the range.17
- Wis. Stat. § 66.0409(1)(b ⤴︎
- Wis. Stat. § 66.0409(3)(a). ⤴︎
- Wis. Stat. § 66.0409(3)(b). ⤴︎
- Wis. Stat. §66.0409 (3) (b). ⤴︎
- Wis. Stat. § 66.0409(4)(a). ⤴︎
- Wis. Stat. § 66.0409(4)(b). ⤴︎
- Wis. Stat. § 66.0409(4)(c). ⤴︎
- Notwithstanding zoning ordinances enacted under sections 59.69 (county planning and zoning authority), 59.692 (zoning authority for shorelands on navigable waters), 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). ⤴︎
- Wis. Stat. § 895.527(4). ⤴︎
- Wis. Stat. § 895.527(5). ⤴︎
- Wis. Stat. § 895.527(6). ⤴︎
- Wis. Stat. § 66.0409(6). ⤴︎
- 253 Wis. 2d 647 (2002). ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
- Id. ⤴︎
Wyoming Statute § 6-8-401(c) provides:
The sale, transfer, purchase, delivery, taxation, manufacture, ownership, transportation, storage, use and possession of firearms, weapons and ammunition shall be authorized, regulated and prohibited by the state, and regulation thereof is preempted by the state. Except as authorized by [section 15-1-103(a)(xviii) (authorizing local governments to “[r]egulate, prevent or suppress riots, disturbances, disorderly assemblies or parades, or any other conduct which disturbs or jeopardizes the public health, safety, peace or morality, in any public or private place”)], no city, town, county, political subdivision or any other entity shall authorize, regulate or prohibit the sale, transfer, purchase, delivery, taxation, manufacture, ownership, transportation, storage, use, carrying or possession of firearms, weapons, accessories, components or ammunition except as specifically provided by this chapter. [Section 6-8-401] shall not affect zoning or other ordinances which encompass firearms businesses along with other businesses. Zoning and other ordinances which are designed for the purpose of restricting or prohibiting the sale, purchase, transfer or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this section and are prohibited.
There is no case law interpreting this statute.
Wyoming Statute § 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:
- The person is unlawfully possessing or unlawfully carrying the firearm in violation of Wyoming law; or
- The firearm is confiscated by a peace officer acting in the lawful discharge of his or her duties and under the reasonable belief that the confiscation is necessary for the protection of the peace officer, the person carrying the firearm or a third party.
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.1
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 16-11-103.2 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, 1995.3