Local Authority to Regulate Firearms in Alabama

Preemption Statute

In 2013, Alabama redrafted its firearms preemption laws to expressly preempt local regulation of firearms.

Section 13A-11-61.3 of the Code of Alabama provides as follows:

(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 [this Act] 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.

Exceptions

The Alabama legislature has carved out narrow exceptions to the state’s broad preemption statute.

Section 13A-11-61.3(g) provides for the following exceptions:

  • An employer can regulate or prohibit an employee’s carrying or possession of firearms during the course of the employee’s official duties.
  • A political subdivision can enact a generally applicable zoning or business ordinance that includes firearms businesses along with other businesses, provided that the ordinance does not restrict the otherwise lawful sale of firearms and firearm accessories.
  • A political subdivision can enact and enforce rules of operation and use for any firearm range owned or operated by the political subdivision.
  • A political subdivision can sponsor or conduct any firearm-related competition or educational or cultural program and can enact and enforce rules for participation in or attendance at such program, provided that the political subdivision cannot offer compensation for the surrender of firearms as a method of reducing the number of privately owned firearms.
  • Local ordinances that make the violation of a state firearm law a violation of an ordinance can be enacted and enforced, provided that 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 state law.
  • Counties and municipalities can collect taxes from firearms, ammunition and accessories sales as long as the tax rate for firearms is not higher than the jurisdiction’s general sales tax rate.

In addition, section 11-51-02 permits cities and towns to close establishments that sell firearms or other deadly weapons, “when the public good or safety demands it,” until the next meeting of the relevant governing body.

Finally, section 11-51-03 gives cities and towns the authority to revoke a license issued to a location where firearms or other deadly weapons 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 violating an ordinance regulating that business.

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting this statute.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against shooting ranges and the gun industry, see our page on Immunity Statutes in Alabama.

Local Authority to Regulate Firearms in Alaska

Preemption Statute

Alaska has expressly preempted most local firearm regulation. Section 29.35.145(a) of Alaska Statutes 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.

Exceptions

Section 29.35.145(b) specifically allows municipalities to enact and enforce 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
  • Prohibit the possession of firearms in the restricted access area of municipal government buildings1

In addition, section 29.35.145(c) provides that 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.

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting these statutes.

Other Statutory Provisions

Firearms in Motor Vehicles

Alaska generally preempts municipalities from prohibiting the possession or storage of firearms in motor vehicles.2

However, an employer or its agent may prohibit firearm possession within a secured restricted access area3, 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.4

In addition, the state of Alaska, 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 18.65.800.5

Concealed Carry

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.6

Immunity

For state laws prohibiting certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Alaska.

Notes
  1. 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. Alaska Stat. § 29.35.145(e)(2). ⤴︎
  2. Alaska Stat. § 18.65.800(a). ⤴︎
  3. as defined in § 29.35.145(e)(2). See supra note 1. ⤴︎
  4. Alaska Stat. § 18.65.800(d). ⤴︎
  5. Alaska Stat. § 18.65.800(c). ⤴︎
  6. Though Alaska no longer requires a permit to carry a concealed handgun, Alaska retained its permitting system for those who want reciprocity with other states, or those who seek to be exempt from background checks when purchasing additional firearms. See Alaska Stat. §§ 18.65.700 to 18.65.790. ⤴︎

Local Authority to Regulate Firearms in Arizona

Preemption Statutes

Arizona has two statutes that preempt local firearm regulation.

Arizona Revised Statutes section 13-3118 states:

“[e]xcept 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.”

Arizona Revised Statutes section 13-3108 provides that political subdivisions of Arizona may 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 state1
  • 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 accessories2
  • Require or maintain 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
    • The description, including the serial number, of a weapon that is left in temporary storage at any public establishment or public event3
  • 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 penalty4
  • Enact any ordinance, rule or regulation limiting the lawful taking of wildlife during an open season established by the Arizona game and fish commission5
  • Facilitate the destruction of a firearm or purchase or otherwise acquire a firearm for the purpose of destroying the firearm6

Section 13-3108 clarifies 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.7

Section 17-602(A) provides that outdoor shooting range noise standards are a matter of statewide concern, and expressly preempts city, town, county and any other state noise standards as applied to outdoor shooting ranges.

Exceptions to Arizona’s Preemption Law

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 firearms or ammunition at the same tax rate applicable to the purchase of other personal property8
  • Require that a minor who knowingly possesses or carries a firearm in public place or on private property (except private property owned or leased by the minor or the minor’s parent, grandparent or guardian) 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 does not apply to minors aged 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.9
  • 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 businesses10
    • 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.11
  • 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 vehicles.12
  • Limit or prohibit the discharge of firearms in certain parks and preserves13

Interpretation

In 1978, the Attorney General of Arizona opined that state law would preempt an ordinance generally prohibiting the carrying of a firearm outside one’s own real property.14

In 1998, in City of Tucson v. Rineer, the Arizona Court of Appeals rejected a section 13-3108(A) challenge to a Tucson ordinance that prohibited the use or possession of firearms within city parks.15 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.16 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.17 Note that, in 2010, the Arizona Legislature removed local authority to limit firearm possession in certain parks and preserves.18

The Court of Appeals again rejected a section 13-3108 challenge to a local firearm-related regulation in McMann v. City of Tucson.19 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).20 The court held that the legislature had not clearly manifested an intent to preempt Tucson from requiring background checks on prospective firearms purchasers at events held at the TCC.21

In 2003, following the McMann case, the Legislature amended section 13-3108(G)(3)(a), which permits local jurisdictions to regulate the land and structures of firearms and ammunition-related businesses in the same manner as other commercial businesses, to include the following provision:

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.

Finally, in 2017, in State ex rel. Brnovich v. City of Tucson, the Supreme Court of Arizona considered the City of Tucson’s 12-year-old ordinance that allowed the Tucson Police Department to reuse or destroy unclaimed and forfeited guns. Since 2013, Arizona state law had required those guns be resold. The State asked Tucson to repeal its gun-destruction ordinance; Tucson refused. In 2016, Arizona enacted SB 1487, which gives the State authority to withhold revenue from a local entity that refuses to repeal an ordinance the State finds to be in conflict with State law.

Tucson conceded that its ordinance was in conflict with state law, but argued that SB 1487 violated Tucson’s home rule authority to regulate matters of local concern. The court rejected Tucson’s argument, finding that the subject matter of the laws at issue − the Tucson Police Department’s disposition of property, the conduct of Tucson Police Department employees, and the regulation (which includes the disposition) of firearms − implicate police power, an authority generally left to the state. The court also noted that while it agreed with the State and the NRA’s assertion that preserving the federal and state right to bear arms is a subject of state concern, it declined to decide that issue in light of all the other reasons the law at issue implicated a state concern.

The court noted the only two instances in which it has upheld local laws that were inconsistent with state law because the local laws were “purely municipal affairs” or of only “local interest or concern” – where local laws directed the method and manner by which (1) local elections are held in a city and (2) real estate owned by the city is disposed of. The court rejected Tucson’s argument that a proprietary interest should be pivotal and Tucson’s suggestion to adopt a California-like balancing test to determine if a state-wide interest is “sufficiently concrete and identifiable” to outweigh a home-rule city’s local interest in self-government.

Extreme Preemption

Arizona’s firearms preemption statute provides for penalties against subdivisions and their officials for violating the preemption law. Specifically, section 13-3108 provides that any law or rule 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.22

Section 13-3108 also 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.23

In 2016, Arizona enacted SB 1487, which gives the State authority to withhold revenue from a local entity that refuses to repeal an ordinance the State finds to be in conflict with State law.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Arizona.

Notes
  1. Ariz. Rev. Stat § 13-3108(A). ⤴︎
  2. Ariz. Rev. Stat § 13-3108(B). ⤴︎
  3. Ariz. Rev. Stat § 13-3108(C)(1)-(3). ⤴︎
  4. Ariz. Rev. Stat § 13-3108(D). 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. Id. ⤴︎
  5. Ariz. Rev. Stat § 13-3108(E). Except rules that regulate firearm discharge within 1/4 mile of an occupied structure. ⤴︎
  6. Ariz. Rev. Stat § 13-3108(F). Except as authorized by Arizona law governing the forfeiture of weapons and the destruction of weapons used unlawfully to hunt. ⤴︎
  7. Ariz. Rev. Stat § 13-3108(M). ⤴︎
  8. Ariz. Rev. Stat § 13-3108(G)(1). ⤴︎
  9. Ariz. Rev. Stat § 13-3108(G)(2). ⤴︎
  10. But see 17-602(A), which states that outdoor shooting range noise standards are a matter of statewide concern. ⤴︎
  11. Ariz. Rev. Stat § 13-3108(G)(3). 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. Ariz. Rev. Stat § 13-3108(G)(3)(a). ⤴︎
  12. Ariz. Rev. Stat § 13-3108(G)(4). ⤴︎
  13. Ariz. Rev. Stat § 13-3108(G)(5). 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. Ariz. Rev. Stat § 13-3108(G)(5)(a)-(g). ⤴︎
  14. Op. Ariz. Att’y Gen. I78-274, 1978 Ariz. AG LEXIS 16 (Nov. 3, 1978). ⤴︎
  15. 971 P.2d 207 (Ariz. Ct. App. 1998), superseded by statute, 2010 Ariz. ALS 19. ⤴︎
  16. Id. at 210. ⤴︎
  17. Id. ⤴︎
  18. 2010 Ariz. ALS 19. ⤴︎
  19. 47 P.3d 672 (Ariz. Ct. App. 2002), superseded by statute, 2003 Ariz. ALS 162 § 1. ⤴︎
  20. Id. at 674. ⤴︎
  21. Id. at 678. ⤴︎
  22. Ariz. Rev. Stat § 13-3108(H)-(K). ⤴︎
  23. Ariz. Rev. Stat § 13-3108(I)-(J). ⤴︎

Local Authority to Regulate Firearms in Arkansas

Preemption Statute

Arkansas Code Annotated sections 14-54-1411(b)(1) (regulating municipalities) and 14-16-504(b)(1) (regulating counties) provide:

(A) A local unit of government1 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.

Exceptions

The governing body of a city, town, or county “may enact an emergency ordinance regulating the transfer, transportation, or carrying of firearms” or their components if the governor of Arkansas has declared a state of emergency.2 The emergency ordinance enacted by a city or town cannot be in effect for more than 20 days and must be enacted by a two-thirds majority of the governing body.3

In addition, a county may regulate the discharge of firearms at the request of the governing body of a suburban improvement district4 or a property owners’ association.5

Finally, local governments of counties, larger cities, and incorporated towns may regulate the location and construction of a sport shooting range.6 However, when a local government enacts an ordinance affecting an existing shooting range, the range must be allowed to continue operation even if it does not comply with the new ordinance.7 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.8

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting these statutes.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Arkansas.

Notes
  1. A “local unit of government” is defined as “a city, town, or county.” Ark. Code Ann. §§ 14-54-1411(a), 14-16-504(a). ⤴︎
  2. Ark. Code Ann. §§ 14-54-1411(c)(1), 14-16-504(c)(1). ⤴︎
  3. Ark. Code Ann. §§ 14-54-1411(c)(2). ⤴︎
  4. Ark. Code Ann. §§ 14-16-501. ⤴︎
  5. Ark. Code Ann. §§ 14-16-502. ⤴︎
  6. Ark. Code Ann. §§ 14-1-101(c). ⤴︎
  7. Ark. Code Ann. §§ 14-1-101(a). ⤴︎
  8. Ark. Code Ann. §§ 14-1-101(b). ⤴︎

Local Authority to Regulate Firearms in California

Home Rule

General Preemption Law in California

Article XI, section 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

Preemption Statutes

The California Legislature has expressly preempted the following areas of firearms law:

  • Licensing or registration of commercially manufactured firearms8
    • California Government Code section 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 …

  • Licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business9
    • California Penal Code section 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.

  • Regulation of the manufacture, sale or possession of “imitation firearms.”10
    • California Government Code section 53071.5 provides:

By the enactment 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 subdivision 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 described in Section 16250 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

Interpretation

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:”

  1. 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;
  2. 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
  3. 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.15 The court found that, with one exception (the court 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.16

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.”17

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.18

Cases subsequent to Doe demonstrate that section 25605 (formerly section 12026) should be read narrowly.19

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 California 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.20

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.’21

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.22

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.”23

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.24

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 California 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.25

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.”26 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.27

Immunity

For state laws prohibiting certain types of lawsuits against the gun industry, see our page on Immunity Statutes in California.

 

 

Notes
  1. Candid Enterprises v. Grossmont Union High School District, 705 P.2d 876, 882 (Cal. 1985). ⤴︎
  2. Galvan v. Superior Court of San Francisco, 452 P.2d 930 (Cal. 1969). ⤴︎
  3. Sherwin-Williams Co. v. City of Los Angeles, 844 P.2d 534, 536 (Cal. 1993). ⤴︎
  4. Id. at 536-7. ⤴︎
  5. Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420, 428 (Cal. Ct. App. 1997). ⤴︎
  6. Sherwin-Williams, 844 P.2d at 536. ⤴︎
  7. Id. at 536-7. (citations omitted). ⤴︎
  8. Cal. Gov’t Code § 53071. ⤴︎
  9. Cal. Penal Code § 25605(b). ⤴︎
  10. 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 projectile 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. ⤴︎
  11. Cal. Civ. Code § 3482.1(d). ⤴︎
  12. 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). ⤴︎
  13. Sherwin-Williams Co., 844 P.2d at 537 (citations omitted). ⤴︎
  14. 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). ⤴︎
  15. Suter, 67 Cal. Rptr. 2d at 422. ⤴︎
  16. Id. ⤴︎
  17. Id. at 384. ⤴︎
  18. Id. at 385 (citation omitted). ⤴︎
  19. 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). ⤴︎
  20. Great Western, 44 P.3d at 128. ⤴︎
  21. Galvan, supra, 452 P.2d at 938. ⤴︎
  22. Great Western, 44 P.3d at 128-129. ⤴︎
  23. Id. at 129. See Galvan, 452 P.2d at 939. ⤴︎
  24. Great Western, 44 P.3d at 130-131. ⤴︎
  25. Nordyke, 44 P.3d at 138. ⤴︎
  26. Id. ⤴︎
  27. Calguns Foundation at 677. ⤴︎

Local Authority to Regulate Firearms in Colorado

Home Rule

Local jurisdictions in Colorado derive their authority to regulate from Article XX, section 6 of the Colorado Constitution, which provides, in relevant 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, section 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 as 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

Preemption Statutes

The Colorado General Assembly has specifically found that the regulation of firearms is a matter of “statewide concern” and that there is a need for statewide uniformity of firearm regulation to avoid the “extraterritorial impact” of inconsistent firearms regulation among local jurisdictions.5

Colorado Revised Statutes section 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 state law also preempts local laws that would restrict a person’s ability to travel with a firearm in a private vehicle. Specifically, section 18-12-105.6(2)(b) provides:

No 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….6

Moreover, 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.7

Exceptions

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.8

Interpretation

Subsequent to the enactment of these preemption statutes, the City and County of Denver (“City”) sued the state, seeking declaratory and injunctive relief regarding Denver ordinances that, among other provisions:

  • Regulated the open carrying of firearms
  • Banned assault weapons and Saturday night specials
  • Restricted the open carrying of firearms in city parks9

On November 5, 2004, a Denver District Court granted declaratory and injunctive relief to the City with regard to several ordinances and portions of ordinances. The court also found, however, that state law renders some of Denver’s ordinances and portions of ordinances invalid.

In making its ruling, the court determined whether each ordinance at issue addressed a matter of local concern, statewide concern, or mixed local and statewide concern.

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 and were invalid where they conflicted with state law.10

However, the court also 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.11 In so holding, 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, finding 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.”12

A similar lawsuit was filed against Denver by the Aurora Gun Club, seeking to invalidate the same Denver ordinances, with a similar outcome.13

In 2006 the Supreme Court of Colorado considered the appeal of these two cases. The Court came down with an unusual 3-3 deadlock, which procedurally affirmed the lower court decisions but provided no clear ruling on the substance of the preemption issues involved.14 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.

Other Statutory Provisions

Colorado Revised Statutes Section 29-11.7-102(1) provides that a local government, including a law enforcement agency, shall not maintain a list or other form of record or database of:

  • Persons who purchase or exchange firearms or who leave firearms for repair or sale on consignment
  • Persons who transfer firearms, unless the persons are federally licensed firearms dealers
  • The descriptions, including serial numbers, of firearms purchased, transferred, exchanged, or left for repair or sale on consignment

Section 25-12-109(1) prohibits local governments from enacting noise regulations concerning shooting ranges.

Section 30-15-302 permits counties to regulate the discharge of firearms in areas with an average population of at least 100 persons per square mile.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Colorado.

Notes
  1. 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). ⤴︎
  2. Id. ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. Colo. Rev. Stat. § 29-11.7-101. ⤴︎
  6. In Trinen v. City & County of Denver, 53 P.3d 754, 758-60 (Colo. Ct. App. 2002), the Colorado Court of Appeals held that the Colorado General Assembly’s intent in enacting section 18-12-105.6(2)(b) was to limit, not eliminate, local ordinances regulating the carrying of weapons in private vehicles, and to allow local weapons ordinances that apply to travel wholly within local jurisdictions. See also United States v. Smith, 55 Fed. Appx. 489, fn.1, 2003 U.S. App. LEXIS 1832. ⤴︎
  7. Colo. Rev. Stat. § 18-12-201(1)(e). The Colorado Supreme Court has interpreted Colorado’s concealed weapons act as divesting the Regents of the University of Colorado from any authority regulating the carrying of concealed weapons on University of Colorado campuses. Regents of the Univ. of Colo. v. Students for Concealed Carry on Campus, 271 P.3d 496, 500-501 (2012). ⤴︎
  8. Colo. Rev. Stat. § 29-11.7-104. ⤴︎
  9. City and County of Denver v. State, No. 03-CV-3809, 2004 WL 5212983 (Colo. Dist. Ct. Nov. 5, 2004). ⤴︎
  10. Id. The City conceded the point as to concealed weapon permitting. ⤴︎
  11. Id. ⤴︎
  12. Id. ⤴︎
  13. Sternberg v. City and County of Denver, No. 03-CV-8609 (Colo. Dist. Ct. 2004). ⤴︎
  14. State v. City & County of Denver, 139 P.3d 635 (Colo. 2006). ⤴︎

Local Authority to Regulate Firearms in Connecticut

Preemption Statute

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.

Interpretation

In Dwyer v. Farrell1 the Supreme Court of Connecticut considered whether Connecticut General Statutes section 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.2 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.3 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.4 The court found that this created an irreconcilable conflict between New Haven’s ordinance and the statute, which rendered the ordinance preempted.5

A similar decision was reached in Kaluszka v. Town of E. Hartford,6 where the court found that the state’s extensive hunting laws preempted a municipal ordinance that regulated the discharge of firearms and therefore had the effect of regulating hunting.

More recently, the Supreme Court of Connecticut in Modern Cigarette, Inc. v. Town of Orange7 discussed the general principles governing preemption. There, 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.8 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.9 The court also noted that public safety ordinances are given a presumption of validity.10

With specific application to shooting ranges, a municipality has the authority to evaluate and regulate any increase in noise attributable to a physical expansion of an existing firing or shooting range.11 However, a municipality’s noise control ordinance that limits noise in terms of decibel level in the outdoor atmosphere does 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’s noise pollution control laws (General Statutes Chapter 442) or regulations promulgated thereunder.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against firing ranges, see our page on Immunity Statutes in Connecticut.

Notes
  1. 475 A.2d 257 (Conn. 1984). ⤴︎
  2. Id. at 260. ⤴︎
  3. Id. ⤴︎
  4. Id. at 261. ⤴︎
  5. Id. ⤴︎
  6. 760 A.2d 1282 (Conn. Super. Ct. 1999). ⤴︎
  7. 774 A.2d 969 (Conn. 2001). ⤴︎
  8. Id. at 970-76. ⤴︎
  9. Id. at 983-84. ⤴︎
  10. Id. at 977. ⤴︎
  11. Conn. Gen. Stat. § 22a-74a(c). ⤴︎

Local Authority to Regulate Firearms in Delaware

Preemption Statutes

Local authority to regulate firearms in Delaware is limited by multiple state statutes.

Delaware Code Annotated Title 22, section 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.

In addition, Delaware Code Annotated Title 22, section 835(a)(6) specifically prohibits amending a municipal charter to:

[p]rohibit, 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 title 11, sections 461-471.1

Exceptions

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.2 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.3

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting title 22, section 111; title 22, section 835(a)(6); or title 9, section 330(c).

Other Statutory Provisions

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.4

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry and firing ranges, see our page on Immunity Statutes in Delaware.

Notes
  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. ⤴︎
  2. Del. Code Ann. tit. 22, § 111(b); Del. Code Ann. tit. 9, § 330(d). ⤴︎
  3. 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. ⤴︎
  4. Del. Code Ann. tit. 10, § 8142(d). ⤴︎

Local Authority to Regulate Firearms in Florida

Preemption Statute

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 section 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 section 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,” section 790.33(3) provides:

[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.

Florida Statutes sections 125.0107 and 166.044 also prohibit counties and municipalities, respectively, from adopting any ordinance relating to the possession or sale of ammunition.

Exceptions

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:

  • 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)
  • 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
  • Except as provided in section 790.2516 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
  • 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
  • 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

Interpretation

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 City9 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.”10 The court also rejected an opinion by the Florida Attorney General,11 which had opined 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.”12

Florida courts have read the Florida Constitution Art. 1. section 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 Appeal 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.13 This reading of the Florida Constitution’s right to bear arms provision was recently reaffirmed in Fla. Carry, Inc. v. City of Tallahassee.14

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.15

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.16 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.17

Other Statutory Provisions

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.18

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.19

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.”20

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.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 background checks and impose a 3- to 5-day waiting period for sales occurring in or on “property to which the public has the right of access” within the county.23 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.”24 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.”25 Concealed weapons permit holders are not subject to these laws.26

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry and firing ranges, see our page on Immunity Statutes in Florida.

Notes
  1. Fla. Stat. § 790.33(3)(a). ⤴︎
  2. Id. at 3(c). ⤴︎
  3. Id. at 3(d). ⤴︎
  4. Id. at 3(e). ⤴︎
  5. See Fla. Stat. § 790.33(4). ⤴︎
  6. 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. ⤴︎
  7. 778 So.2d 1042 (Fla. Dist. Ct. App. 2001. ⤴︎
  8. Id at 1045 ⤴︎
  9. South Miami, Fla. Code § 14-00-1716 ⤴︎
  10. 812 So.2d 504, 505-06 (Fla. Dist. Ct. App. 2002 ⤴︎
  11. Op. Att’y Gen. 2000-42 (July 11, 2000 ⤴︎
  12. Id. at 505. ⤴︎
  13. 133 So. 3d 966 (Fla. Dist. Ct. App. 2013 ⤴︎
  14. 212 So. 3d 452, 460 (Fla. Dist. Ct. App. 1st Dist. 2017), reh’g denied, Fla. Carry, Inc. v. City of Tallahassee, 2017 Fla. App. LEXIS 4686 (Fla. Dist. Ct. App. 1st Dist. 2017). ⤴︎
  15. Op. Att’y Gen. Fla. 2005-40, 2005 Fla. AG LEXIS 46. ⤴︎
  16. 664 So.2d 320, 321 (Fla. Dist. Ct. App. 1995 ⤴︎
  17. Id. ⤴︎
  18. Fla. Stat. § 870.044. ⤴︎
  19. Id. ⤴︎
  20. Fla. Stat. § 252.36(5)(h). ⤴︎
  21. Fla. Stat. § 790.333(8). ⤴︎
  22. See Broward County v. Ft. Lauderdale, 480 So. 2d 631, 635 (Fla. 1985) (holding that a charter county may preempt city regulations regarding handgun sales). ⤴︎
  23. Fla. Const. art. VIII, § 5(b). ⤴︎
  24. Id. ⤴︎
  25. Id. ⤴︎
  26. Id. ⤴︎

Local Authority to Regulate Firearms in Georgia

Preemption Statute

The Georgia General Assembly has declared the regulation of firearms to be an issue of general, statewide concern.1 The General Assembly has further enacted a preemption statute, providing that:

[N]o county or municipal corporation, by zoning, by ordinance or resolution, or by any other means, nor any agency, board, department, commission, political subdivision, school district, or authority of this state, other than the General Assembly, by rule or regulation or by any other means shall regulate in any manner:

(A) Gun shows;

(B) The possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms or other weapons or components of firearms or other weapons;

(C) Firearms dealers or dealers of other weapons; or

(D) Dealers in components of firearms or other weapons.2

Exceptions

Cities and counties are not preempted from enacting any of 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 requiring heads of households to own guns
  • Reasonable limits or prohibitions on the discharge of firearms within the boundaries of the municipal corporation or county3

Interpretation

In the 2002 case Sturm, Ruger & Company v. City of Atlanta,4 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 the city of Atlanta’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. Initially, 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 solely to the state’s General Assembly.5 The court held that the state had exercised that power by enacting a regulatory scheme for the distribution and use of firearms.6 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.7

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.8 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.”9

More recently, in GeorgiaCarry.Org, Inc. v. Coweta County,10 the Court of Appeals of Georgia held 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 Roswell,11 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.12

Other Statutory Provisions

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.”13 A local government imposing such a regulatory fee must determine the amount of the fee by one of six methods prescribed by statute.14

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.15

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.”16

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against firing ranges and the gun industry, see our page on Immunity Statutes in Georgia.

Notes
  1. Ga. Code Ann. § 16-11-173(a)(1). ⤴︎
  2. Ga. Code Ann. § 16-11-173(b)(1). ⤴︎
  3. Ga. Code Ann. § 16-11-173(c), (d), (e). ⤴︎
  4. 560 S.E.2d 525 (Ga. Ct. App. 2002). ⤴︎
  5. Id. at 529. ⤴︎
  6. Id. ⤴︎
  7. Id. ⤴︎
  8. Id. at 530. ⤴︎
  9. Id. at 529. ⤴︎
  10. 655 S.E.2d 346 (Ga. Ct. App. 2007). ⤴︎
  11. 680 S.E.2d 697 (Ga. Ct. App. 2009). ⤴︎
  12. Id. at 700-01. ⤴︎
  13. Ga. Code Ann. § 48-13-9(a), (b)(6), (11). ⤴︎
  14. Ga. Code Ann. § 48-13-9(e). ⤴︎
  15. Ga. Code Ann. § 41-1-9(d). ⤴︎
  16. Ga. Code Ann. §§ 36-60-24; 25-10-1(b); 2015 Ga. Laws 50 (H.B. 110) (enacted May 5, 2015). ⤴︎

Local Authority to Regulate Firearms in Hawaii

Home Rule

Section 2 of Article VIII 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.

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any statutes or cases specifically addressing whether local governments are authorized to regulate firearms in Hawaii.

The Supreme Court of Hawaii has set forth the general test for determining when state law preempts local law. In Richardson v. City and County of Honolulu, the court interpreted section 46-1.5(13) to preempt local regulation where “(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.”1 This test was recently affirmed by the Supreme Court of Hawaii in Ruggles v. Yagong.2

Notes
  1. 868 P.2d 1193, 1209 (Haw. 1994). ⤴︎
  2. 353 P.3d 953, 954 (Haw. 2015). ⤴︎

Local Authority to Regulate Firearms in Idaho

Home Rule

Under article XII, section 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.”

Preemption Statute

The Idaho state legislature has expressly preempted the field of firearms regulation. In 2008, Idaho enacted Idaho Code section 18-3302J, which declares that “uniform laws regulating firearms are necessary to protect the individual citizen’s right to bear arms” and that it is “the legislature’s intent to wholly occupy the field of firearms regulation within this state.”1

Section 18-3302J(2) provides:

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.

Exceptions

A county may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within its boundaries, as 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
  • A person discharging a firearm in the course of target shooting on public land if the discharge will not endanger persons or property2

Similarly, a city may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within its boundaries as 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
  • A person lawfully discharging a firearm on a sport shooting range3

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
  • The authority of counties and cities to regulate the location and construction of sport shooting ranges, subject to limitations provided in the Idaho Code4

The provisions of section 18-3302J are declared to be severable.5

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any cases interpreting the statutes discussed.

Other Statutory Provisions

A city, county or other political subdivision cannot modify the requirements for the issuance of a license to carry concealed weapons.6 Nor can any political subdivision ask a concealed weapons license applicant to voluntarily submit any information not required in section 18-3302, which governs concealed weapons.7

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.”8

Sport Shooting Ranges

The Idaho Legislature expressly preempted local authority from establishing or enforcing noise standards on outdoor sport shooting ranges more restrictive than the standards established by state law.9 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.10 A local government may, however, regulate noise produced as a result of a substantial change in the use of the range.11 A local government may also regulate the location and construction of a sport shooting range.12

Sections 55-2601 through 55-2606 do not apply to state outdoor shooting ranges.13 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.14

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against firing ranges and the gun industry, see our page on Immunity Statutes in Idaho.

Notes
  1. Idaho Code Ann. § 18-3302J(1). ⤴︎
  2. Idaho Code Ann. § 18-3302J(3). ⤴︎
  3. Idaho Code Ann. § 18-3302J(4). ⤴︎
  4. Idaho Code Ann. § 18-3302J(5). ⤴︎
  5. Idaho Code Ann. § 18-3302J(6). ⤴︎
  6. Idaho Code Ann. § 18-3302(18). ⤴︎
  7. Id. ⤴︎
  8. Idaho Code Ann. § 46-1008(7). ⤴︎
  9. Idaho Code Ann. § 55-2605. Section 67-9102 sets forth the noise standards for state outdoor shooting ranges. ⤴︎
  10. Id. ⤴︎
  11. Idaho Code Ann. § 55-2603(2). Section 55-2604(5) lists actions that do not constitute a “substantial change in use.” ⤴︎
  12. Idaho Code Ann. § 55-2603(1). ⤴︎
  13. Idaho Code Ann. § 67-9102(1). ⤴︎
  14. Idaho Code Ann. § 67-9105. ⤴︎

Local Authority to Regulate Firearms in Illinois

Preemption Statute

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 amended FOID Card Act explicitly states that its provisions are a denial and limitation of home rule powers and functions under Art. VII, § 6(h) of the Illinois Constitution.910

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.

Immunity

For state laws prohibiting certain types of lawsuits against firing ranges and the gun industry, see our page on Immunity Statutes in Illinois.

Notes
  1. 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. ⤴︎
  2. 430 Ill. Comp. Stat. 65/13.1(b). ⤴︎
  3. Id. ⤴︎
  4. 430 Ill. Comp. Stat. 65/13.1(c). ⤴︎
  5. Id. ⤴︎
  6. Id. ⤴︎
  7. 430 Ill. Comp. Stat. 65/13.1 ⤴︎
  8. 65 Ill. Comp. Stat. 5/1-1-2(1). ⤴︎
  9. 430 Ill. Comp. Stat. 65/13.1(e). ⤴︎
  10. 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). ⤴︎
  11. 430 Ill. Comp. Stat. 66/90. ⤴︎

Local Authority to Regulate Firearms in Indiana

Preemption Statute

The Indiana General Assembly 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

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.2

Exceptions

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.3 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.4 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.5
  • Enact zoning or business ordinances that apply to firearms businesses as 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.6
  • Prohibit or restrict the possession of a firearm in buildings containing courtrooms. 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
  • Enact and enforce a provision prohibiting or restricting the possession of a firearm in a county hospitals.9
  • Prohibit the possession of firearms in buildings owned by the locality if metal detection devices are located at each public entrance and are staffed by at least one law enforcement officer to inspect people and bags.10

Note, however, that a local government cannot prohibit or restrict the possession of a handgun in a building it owns or administers, other than a building containing a courtroom, if the person possessing the handgun has a valid license issued under Indiana’s statutory licensing scheme to carry a handgun.11

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting Indiana’s preemption statutes.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Indiana.

Notes
  1. Ind. Code Ann. § 35-47-11.1-2. ⤴︎
  2. Ind. Code Ann. §§ 35-47-3.5-1 to 35-47-3.5-3. ⤴︎
  3. Ind. Code Ann. § 35-47-11.1-4(2). ⤴︎
  4. Ind. Code Ann. § 34-28-7-2(a). ⤴︎
  5. 2014 Indiana Senate Bill 229. ⤴︎
  6. Ind. Code Ann. § 35-47-11.1-4(4), (12). ⤴︎
  7. Ind. Code Ann. § 35-47-11.1-4(5). ⤴︎
  8. Ind. Code Ann. § 35-47-11.1-4(10). ⤴︎
  9. Ind. Code Ann. § 35-47-11.1-4(11). ⤴︎
  10. Ind. Code Ann. § 35-47-11.1-4(13). ⤴︎
  11. Id. ⤴︎

Local Authority to Regulate Firearms in Iowa

Preemption Statute

Iowa Code section 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 the ownership, possession, transfer, or transportation is otherwise lawful under the laws of this state. An ordinance regulating firearms in violation of this section existing on or after April 5, 1990, is void.

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any cases examining the scope of section 724.28.

However, 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.1

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.”2

Because section 724.28 does not limit the ability of a property owner to manage property owned or directly controlled by her or him, and Iowa law does not preclude a private business owner from prohibiting persons from bringing concealed weapons onto the owner’s business premises, the Attorney General found that section 724.28 must be interpreted consistently to permit a municipality to prohibit persons from bringing concealed weapons onto premises owned or directly controlled by the municipality.3 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.4 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 724.28.5

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 courthouses 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.6

Notes
  1. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6. ⤴︎
  2. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *2. ⤴︎
  3. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *18. ⤴︎
  4. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *18-*19. ⤴︎
  5. Id. ⤴︎
  6. Op. Att’y Gen. No. 03-4-1 (2003), 2003 Iowa AG LEXIS 6, at *7, n2. ⤴︎

Local Authority to Regulate Firearms in Kansas

Preemption Statutes

Kansas 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

Kansas law voids any regulation adopted prior to July 1, 2015 that is prohibited by the above provision.2

In addition, Kansas 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.3

Exceptions

Kansas law provides for limited exceptions to the preemption statutes:

  • Subject to certain exceptions4, a local government in Kansas may prohibit the carrying of a concealed handgun in any state or municipal building, or in a public area of any state or municipal building, or at a public employee’s workplace if the public area, building, or workplace has adequate security measures to ensure that no weapons are permitted to be carried into such public area, building, or workplace, and the public area, building, or workplace is conspicuously posted in accordance with rules and regulations adopted by the attorney general as a location where carrying a concealed handgun is prohibited.5
  • Cities and counties may levy and collect retailers’ sales tax on the sale of firearms, ammunition or any component or combination thereof.6

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.7

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting these statutes.

Other Statutory Provisions

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 does not conform to the new regulation.9 In addition, a sport shooting range in existence on July 1, 2001 and 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.10 Local government may regulate the location and construction of the facilities.11 Kansas also 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.12

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against firing ranges and the gun industry, see our page on Immunity Statutes in Kansas.

Notes
  1. Kan. Stat. Ann. § 12-16,124(a). ⤴︎
  2. Kan. Stat. Ann. § 12-16,124(b). ⤴︎
  3. Kan. Stat. Ann. § 75-7c17(a). ⤴︎
  4. The exceptions are: any building located on the grounds of the Kansas state school for the deaf or the Kansas state school for the blind; a state or municipal-owned medical care facility; a state or municipal-owned adult care home; a community mental health center; an indigent health care clinic; or certain buildings owned or leased by the University of Kansas hospital authority or within certain health care districts. Kan. Stat. Ann. § 75-7c20(k). ⤴︎
  5. Kan. Stat. Ann. § 75-7c20(a), (b) & (c). Kansas law provided avenues for local authorities to exempt their buildings from the security and signage requirements, but these exemptions expired on July 1, 2017. Kan. Stat. Ann. § 75-7c20(i), (j). ⤴︎
  6. Kan. Stat. Ann. § 12-16,124(c)(4). ⤴︎
  7. 2014 Kan. Sess. Laws 97. ⤴︎
  8. Kan. Stat. Ann. § 48-959. ⤴︎
  9. Kan. Stat. Ann. § 58-3223(a). ⤴︎
  10. Kan. Stat. Ann. § 58-3223(b). ⤴︎
  11. Id. ⤴︎
  12. Kan. Stat. Ann. § 58-3224. ⤴︎

Local Authority to Regulate Firearms in Kentucky

Preemption Statutes

Kentucky law expressly preempts several types of local firearms ordinances.

Kentucky Revised Statutes Annotated section 65.870(1) provides:

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.

Any existing or future executive or legislative action in violation of the above section “or the spirit thereof” is “null, void, and unenforceable,” and any person or organization specified in the section quoted above must have repealed any executive or legislative action in violation of the above section “or the spirit above” by December of 2012.1

Further, section 100.325 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.”2

Moreover, the Kentucky General Assembly has expressly limited local authority to regulate the carrying of concealed weapons. The General Assembly expressly occupies “the field of regulation of the bearing of concealed firearms to ensure that no person who qualifies [to carry a concealed weapon] is denied his rights.”3

Finally, section 237.104 provides that 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. It also prohibits the taking, seizing, confiscating or impounding of a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument during those same times.

Exceptions

Kentucky does not restrict or prohibit:

  • The right of public or private universities, colleges, and other postsecondary education facilities (including technical schools and community colleges) from prohibiting the carrying of concealed weapons on their properties4
  • A local government from prohibiting the carrying of concealed weapons in portions of buildings it owns, leases, or occupies.5 The local government, however, may not impose a criminal penalty for carrying a concealed firearm with a permit at any location at which an unconcealed firearm may constitutionally be carried, unless otherwise provided by state or federal law.6

Interpretation

In 1993, the Kentucky Attorney General was asked if KRS §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.”7

In 1996 the Kentucky Attorney General 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.”8

In 1999, the Kentucky Attorney General invalidated as preempted a Louisville, Kentucky ordinance regulating concealable firearms, finding that section 65.870 “expressly prohibits a city from enacting legislation in the area of the ownership, possession and carrying of firearms” and does not “provide any exception that would permit a city to regulate “concealable firearms.”9

Extreme Preemption

Kentucky law provides a cause of action for declaratory or injunctive relief for an individual or organization adversely affected by an executive or legislative action that violates section 65.870 “or the spirit thereof.”10 The prevailing party in any such action is entitled to the reimbursement of attorney and expert fees and costs.11 The court shall declare the improper ordinance null, void, and unenforceable, and issue a permanent injunction against enforcement of the ordinance.12

Kentucky’s firearms preemption law also imposes criminal liability on a local official who acts in violation of the state’s firearms preemption law. A public servant in Kentucky who violates the provisions of KRS section 65.870 or “the spirit thereof” is subject to criminal prosecution for either Official Misconduct in the first degree, a Class A misdemeanor punishable by a sentence of 90 days to 12 months in jail and a fine of up to $500, or Official Misconduct in the second degree, a Class B misdemeanor punishable by a sentence of up to 90 days in jail and a fine of up to $250, depending on the nature of the violation.13

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against firing ranges and the gun industry, see our page on Immunity Statutes in Kentucky.

Notes
  1. Ky. Rev. Stat. § 65.870(2), (3). ⤴︎
  2. 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. 98 S.W.3d 517, 520 (Ky. Ct. App. 2002). ⤴︎
  3. Ky. Rev. Stat. § 237.110(19). ⤴︎
  4. Ky. Rev. Stat. § 237.115(1). ⤴︎
  5. Ky. Rev. Stat. § 237.115(2). The local government, however, “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.” KRS § 237.115(2). Moreover, 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. These individuals may carry concealed firearms anywhere but detention facilities. KRS § 237.115(1), (2). ⤴︎
  6. Ky. Rev. Stat. § 237.115(3). ⤴︎
  7. 93 Ky. Op. Att’y Gen. 71, 1993 Ky. AG LEXIS 179, at *2. Note that the Attorney General was interpreting a prior version of KRS §65.870, which provided that “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.” Id. ⤴︎
  8. 96 Ky. Op. Att’y Gen. 39, 1996 Ky. AG LEXIS 79, at *5. ⤴︎
  9. 99 Ky. Op. Att’y Gen. 10, 1999 Ky. AG LEXIS 211, at *1-*2. ⤴︎
  10. Ky. Rev. Stat. §65.870(4). ⤴︎
  11. Id. ⤴︎
  12. Ky. Rev. Stat. §65.870(5). ⤴︎
  13. Ky. Rev. Stat. §65.870(6). ⤴︎

Local Authority to Regulate Firearms in Louisiana

Preemption Statutes

Louisiana expressly preempts local regulation of firearms. Louisiana Revised Statutes Annotated section 40:1796(A) provides:

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.

Further, In 2012 Louisiana enacted a law to clarify that local ordinances regulating the carrying of firearms in public are subject to the provisions of section 40:1796 and may not be more restrictive than state law.1

Exceptions

Louisiana state law provides for the following exceptions:

  • Political subdivisions can levy and collect sales, use, and license taxes, as well as license and permit fees on gun dealers.2
  • Political subdivisions can prohibit the possession of a weapon or firearm in certain commercial establishments and public buildings.3
  • Local governments in specified “high risk” parishes (governmental units akin to counties) retain the authority to develop plans with federally licensed firearms dealers during a declared state of emergency or disaster to secure their inventory to prevent looting.4
  • Parishes are allowed to zone to prohibit, restrict, or regulate hunting and the shooting of firearms” in “heavily populated areas,” as defined by the statute.5
  • Municipalities with a population in excess of 425,000 may initiate firearms buyback programs, subject to certain state guidelines.6
  • Parish governing authorities can 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.7

Interpretation

As of the date this page was updated, Giffords Law Center is not aware of any relevant case law interpreting these statutes.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against firing ranges and the gun industry, see our page on Immunity Statutes in Louisiana.

Notes
  1. La. Rev. Stat. § 14:95(F)(3). ⤴︎
  2. La. Rev. Stat. §40:1796(A). ⤴︎
  3. Id. ⤴︎
  4. La. Rev. Stat. §40:1796(B). ⤴︎
  5. La. Rev. Stat. § 33:120. ⤴︎
  6. La. Rev. Stat. § 33:4879. ⤴︎
  7. La. Rev. Stat. § 33:1236(37). ⤴︎

Local Authority to Regulate Firearms in Maine

Preemption Statute

The Maine Legislature has adopted an express preemption statute. Section 2011 of title 25 of Maine Rev. Stat. 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.

The adoption of express preemption rendered invalid many local ordinances regulating firearms.1 In addition to affecting regulations by cities and counties, section 2011 preempts firearms regulations by municipal agencies or authorities.2

Exceptions

Political subdivisions in Maine are allowed to enact ordinances that:

  • Conform exactly with state law3
  • Regulate firearm discharge4

Law enforcement agencies also retain the authority “to regulate the type and use of firearms” issued to its employees.5

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting these statutes.

Other Statutory Provisions

Maine also 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.6 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, 2016.7

Further, a 2017 law 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

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Maine.

Notes
  1. 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). ⤴︎
  2. 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 that prohibited the possession of firearms on the leased premises). ⤴︎
  3. Me. Stat., 25, § 2011(3). ⤴︎
  4. Id. Though section 13201 of title 12 (relating to inland fisheries and wildlife) precludes a political subdivision from enacting “any ordinance, law or rule regulating the hunting, trapping or fishing for any species of fish or wildlife,” the statute specifically provides that the restriction does not prohibit the enactment of “any ordinance generally regulating the discharge of firearms in a municipality or any part of a municipality.” Any municipality adopting or amending a firearm discharge ordinance, though, must consult with the Maine Department of Inland Fisheries and Wildlife during the process and must use “clearly defined physical boundaries” as points of reference to describe the area or areas in which the discharge of firearms is prohibited. Me. Stat., 30, § 3007(5). ⤴︎
  5. Me. Stat., 25, § 2011(4). ⤴︎
  6. Me. Stat., 30, § 3011(2). ⤴︎
  7. Id. at (3) and (4). ⤴︎
  8. Me. Stat., 25, § 2014. ⤴︎

Local Authority to Regulate Firearms in Maryland

Preemption Statutes

The Maryland Legislature has adopted an express preemption statute. Section 4-209 of the Maryland Criminal Law Code provides that:

[T]he State preempts the right of a county, municipal corporation, or special taxing district to regulate the purchase, sale, taxation, transfer, manufacture, repair, ownership, possession, and transportation of:

  1. a handgun, rifle, or shotgun; and
  2. ammunition for and components of a handgun, rifle, or shotgun.

A county, municipal corporation, or special taxing district may not prohibit the teaching of or training in firearms safety, or other educational or sporting use of the items listed in subsection (a) of this section.

To the extent that a local law does not create an inconsistency with this section or expand existing regulatory control, a county, municipal corporation, or special taxing district may exercise its existing authority to amend any local law that existed on or before December 31, 1984.

In addition, Maryland preempts the right of any local jurisdiction to regulate the possession,1 sale,2 or transfer3 of firearms regulated by section 5-101 of the Maryland Code of Public Safety, which includes handguns and certain assault weapons.4

Exceptions

Section 4-209(b) of the Maryland Criminal Law Code provides limited exceptions to Maryland’s firearms preemption statute. Local governments may regulate the purchase, sale, transfer, ownership, possession and transportation of firearms and ammunition with respect to:

  • Minors5
  • Law enforcement officials of the local government
  • Activities in or within 100 yards of “a park, church, school, public building, and other place of public assembly.”

In addition, Section 4-209(d) allows local governments to regulate the discharge of firearms, but not at “established ranges.”

Interpretation

Maryland courts have had occasion to address Maryland’s firearms preemption law.

In State v. Phillips, the defendant challenged the City of Baltimore’s Gun Offender Registry Act (GORA) on several grounds, including preemption. The defendant did not contend that section 4-209(a) expressly preempted Baltimore’s GORA. Instead, he argued that the GORA was impliedly preempted because the state had thoroughly regulated the field of gun offenses. The court rejected the defendant’s argument, holding that, although the state “has heavily regulated the field of use, ownership, and possession of firearms … [it] has not so extensively regulated the field of firearm use, possession, and transfer that all local laws relating to firearms are preempted.”6

The Maryland Attorney General has also had occasion to interpret Maryland’s firearms preemption law.

In 1991, the Attorney General concluded that an 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,” and therefore within the statutory exception provided by section 4-209(b).7 The Attorney General reached the same conclusion with regard to a local ordinance requiring the sale of trigger locks with handguns.8 Note that in both of these opinions, the Attorney General was interpreting the former version of section 4-209(b), which was substantially similar to the current version.

In 2008, the Attorney General concluded that a local ordinance that would require gun owners to report the theft or loss of a firearm within two days of discovering that the weapon had been lost or stolen was not preempted because, apart from the duty to report the loss of the firearm, the ordinance did not otherwise restrict, control, or affect the ownership, possession, or use of firearms; that the measure was consistent with the state law prohibitions against illegal gun trafficking; and that the ordinance did not otherwise conflict with State law.9 In making its determination, the Attorney General noted that, although the General Assembly “has expressly and broadly preempted local regulation of the manufacture, sale, ownership, possession, and transfer of firearms,” it did not intend “to preempt all local laws that are in any degree related to firearms”.

Other Statutory Provisions

Certain political subdivisions in Maryland are expressly preempted from adopting any noise control ordinance, rule or regulation prohibiting target and other shooting activities between the hours of 9 a.m. and 10 p.m. by a shooting sports club in operation as of certain dates.10 However, certain political subdivisions may 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, 2005.11 The political subdivision may enforce noise control regulations until compliance with environmental standards is met.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Maryland.

Notes
  1. Md. Pub. Safety Code Ann. § 5-133(a). ⤴︎
  2. Md. Pub. Safety Code Ann. § 5-104. ⤴︎
  3. Md. Pub. Safety Code Ann. § 5-134(a). ⤴︎
  4. Md. Pub. Safety Code Ann. § 5-101(r). ⤴︎
  5. Maryland law defines “minors” as those under the age of 18. Md. Gen. Prov. Code Ann. § 1-103. ⤴︎
  6. State v. Phillips, 210 MD. App. 239, 280-81 (2013). Note that the U.S. District Court for the District of Maryland reached the opposite conclusion. See Blue v. Batth, 2017 U.S. Dist. LEXIS 9230 (state law “has so thoroughly and pervasively covered the subject of firearms regulation … that any non-specified regulation by local governments is clearly preempted.”), quoting Mora v. City of Gaithersburg, 462 F. Supp. 2d 675 (D. Md. 2006), aff’d as modified by 519 F.3d 216 (4th Cir. 2008). The court noted the conflict in Blue v. Batth, 2017 U.S. Dist. LEXIS 152604, fn 7, 2017 WL 4162244. ⤴︎
  7. 76 Op. Att’y Gen. Md. 240 (1991), 1991 Md. AG LEXIS 64. ⤴︎
  8. 82 Op. Att’y Gen. 84 (1997), 1997 Md. AG LEXIS 5. ⤴︎
  9. 93 Op. Att’y Gen. 126 (2008). ⤴︎
  10. Md. Envir. Code Ann. § 3-105(a)(3), (4). ⤴︎
  11. Md. Envir. Code Ann. § 3-105(a)(4)(ii)(1). ⤴︎

Local Authority to Regulate Firearms in Massachusetts

Home Rule

Massachusetts’ Home Rule Amendment, embodied in sections 1-9 of article II of the Articles of Amendment of the Massachusetts Constitution, grants cities and towns broad regulatory authority.

Section 1 provides as follows:

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. [Note that the term “general court” in the Massachusetts Constitution and state statutes refers to the Massachusetts state legislature.]

The substance of the Home Rule Amendment is in section 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 [section 8 of the Home Rule Amendment, discussed below], 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 [section 3 of the Home Rule Amendment].

Section 7 limits cities and towns from exercising the authority granted in sections 1 and 6 in specified areas unless such authority is granted by the general court as provided for in section 8. Most relevant to firearm regulation are sections 2 and 6 of section 8, which provide, respectively, that municipalities are not permitted to “levy, assess, and collect taxes” or “define and provide “for the punishment of a felony or to impose imprisonment as a punishment for any violation of law.”1

Section 8 provides authority for a city or town to petition the state to enact special legislation pertaining only to that city or town. Boston’s assault weapon ban is an example of regulation that was enacted through this process.2

In addition to the Home Rule Amendment, the Massachusetts state legislature has enacted various laws that govern municipal authority to regulate. Chapter 43B of the Annotated Laws of Massachusetts, titled the Home Rule Procedures Act, contains many of these provisions. Significantly, section 13 of chapter 43B defines the parameters of a municipality’s powers, and is virtually identical in substance to section 6 of the Home Rule Amendment.

Moreover, pursuant to section 21 of chapter 40 of the Annotated Laws of Massachusetts, towns in Massachusetts may “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.”3 Relevant to firearm regulation, 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.”4

Although the Massachusetts Constitution does not grant any explicit power to counties, those counties adopting a charter under the procedures specifically set forth for counties in section 15 of chapter 34A of Massachusetts Statutes Annotated 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.5 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.6

Interpretation

In 1999, the Supreme Judicial Court of Massachusetts in Connors v. City of Boston reaffirmed the following guidelines to determine whether a municipal regulation is a valid exercise of the municipality’s home rule authority. In making a determination, a court should:

  • “look to see whether there was either an express legislative intent to forbid local activity on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject;”7
  • “in some circumstances, … infer that the Legislature intended to preempt the field because legislation on the subject is so comprehensive that any local enactment would frustrate the statute’s purpose;”8
  • “require a ‘sharp conflict’ between a local regulation and the State legislation before invalidating the local regulation. A ‘sharp conflict’ exists ‘when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law.”9

In 1986, in Amherst v. Attorney General,10 the Supreme Judicial Court of Massachusetts upheld a local by-law prohibiting the discharge of certain firearms under certain circumstances within town limits. In so holding, the court held that the regulation was not inconsistent with state statutes regulating hunting and the safe use of firearms. In so holding, the court found 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.11 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.12

Notes
  1. Mass. Const. Amend. art. II, §§ 7(2), (6). ⤴︎
  2. 1989 Mass. Acts 596, §§ 1-7. ⤴︎
  3. Ch. 40, § 21. ⤴︎
  4. 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). ⤴︎
  5. Ch. 34A, § 16(A)(ii). ⤴︎
  6. Ch. 34A, § 16(B). ⤴︎
  7. Connors v. City of Boston, 430 Mass. 31, 35-36 (1999), quoting Boston Gas Co. v. Somerville, 420 Mass. 702, 704 (1995) (internal citations omitted). ⤴︎
  8. Id. ⤴︎
  9. Connors, supra, quoting Grace v. Brookline, 379 Mass. 43, 54 (1979) (internal citations omitted). ⤴︎
  10. 398 Mass. 793 (1986). ⤴︎
  11. Id. at 130 (quoting Bloom v. Worcester, 363 Mass. 136, 156 (Mass. 1973). ⤴︎
  12. Id. at 131. ⤴︎

Local Authority to Regulate Firearms in Michigan

Preemption Statute

The Michigan Legislature has adopted firearms preemption statute. Section 123.1102 of the Michigan Compiled Laws Service provides:

A local unit of government1 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.

Exceptions

Section 123.1103 permits local units of government to regulate firearms in very limited ways. Local units of government may prohibit or regulate:

  • Conduct with a firearm that is a criminal offense under state law2
  • Transportation, carrying, or possession of firearms by their employees in the course of employment with the local unit of government3
  • Discharge of firearms within the jurisdiction of a city or charter township4

Interpretation

In 2018, the Supreme Court of Michigan had occasion to interpret section 123.1102. In Michigan Gun Owners, Inc. v. Ann Arbor Public. School,5 the defendants, the Ann Arbor and Clio school districts, each had a policy banning firearms on school property. The plaintiffs asserted that state law preempted these policies. The court found that the school districts’ firearms bans were not expressly preempted by section 123.1102 because that section only preempts regulation by a “local unit of government,” which includes “a city, village, township, or county,” but not a school district.6 The court also held that it need not determine whether the school districts’ firearms bans were impliedly preempted by a legislative intent to occupy the field of firearms regulation because section 123.1102 already expressed the legislature’s intent with regard to a local unit of government’s authority to regulate firearms.7

The Michigan Court of Appeals reached a similar conclusion in 2017 in Wade v. University. of Michigan., holding that the Board of Regents of the University of Michigan is a constitutional corporation more equated with a state-level agency rather than a local government, and therefore outside the ambit of section 123.1102.8

In Michigan Coalition for Responsible Gun Owners v. City of Ferndale, the Court of Appeals of Michigan sustained a section 123.1102 challenge to a city ordinance making public buildings gun-free zones.9 In sustaining the challenge, the court analyzed whether the state legislature had impliedly preempted the ordinance by occupying the field of law regulating the carrying or possession of firearms. 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.10 According to the court, the ordinance would only be allowable if a federal or state law existed that expressly permitted the regulation.11 Finding no law allowing the Ferndale ordinance, the court determined that the ordinance was preempted by section 123.1102.12

Note that in Michigan Gun Owners, discussed above, the Supreme Court of Michigan held that section 123.1102 obviates the need for a field preemption analysis in firearms regulation challenges because the statute already expresses the legislature’s intent with regard to local regulation of firearms. Based on that finding, the court went on to expressly overrule the proposition enunciated by the Michigan Court of Appeals in Michigan Coalition for Responsible Gun Owners, and followed in Capital Area District Library v. Michigan Open Carry, Inc.,13 that section 123.1102 “completely occupies the field of [firearms] regulation.”14

In Morgan v. United States DOJ 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 123.1102.15 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.16

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.17 While the opinion was supported by several statutes, the Attorney General found primary support for this conclusion in section 123.1102, which, in the Attorney General’s opinion, occupies the “field of firearm regulation.”18

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Michigan.

Notes
  1. A “local unit of government” is defined as “a city, village, township, or county.” Mich. Comp. Laws Serv. § 123.1101(b). ⤴︎
  2. Mich. Comp. Laws Serv. § 123.1103(a). ⤴︎
  3. Mich. Comp. Laws Serv. § 123.1103(b). ⤴︎
  4. Mich. Comp. Laws Serv. § 123.1104(a). ⤴︎
  5. 2018 Mich. LEXIS 1568. ⤴︎
  6. Id. at *5-6. ⤴︎
  7. Id. at *7-*8. ⤴︎
  8. 320 Mich. App. 1, *21 (2017). ⤴︎
  9. Mich. Coalition for Responsible Gun Owners v. City of Ferndale, 256 Mich. App. 401, 418 (2003). ⤴︎
  10. Id. at 414. ⤴︎
  11. Id. at 414-15. ⤴︎
  12. Id. at 415-18. ⤴︎
  13. 298 Mich. App. 220, 239 (2012). ⤴︎
  14. Id. at *9, quoting Mich. Coalition for Responsible Gun Owners v. City of Ferndale, 256 Mich. App. 401, 414 (2003). ⤴︎
  15. 473 F. Supp. 2d 756, 771 (E.D. Mich. 2007), aff’d on other grounds, Morgan v. Fed. Bureau of Alcohol, Tobacco & Firearms, 509 F.3d 273 (6th Cir. 2007), cert. denied, Morgan v. BATFE, 2008 U.S. LEXIS 3900 (2008). ⤴︎
  16. Id. at 770 (emphasis in original). ⤴︎
  17. Mich. Op. Att’y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *8. ⤴︎
  18. Mich. Op. Att’y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *7. ⤴︎

Local Authority to Regulate Firearms in Minnesota

Preemption Statutes

The Minnesota Legislature has adopted several firearms preemption statutes. Section 471.633 of Minnesota Statutes Annotated provides as follows:

The legislature preempts all authority of a home rule charter or statutory city including a city of the first class, county, town, municipal corporation, or other governmental subdivision, or any of their instrumentalities, to regulate firearms, ammunition, or their respective components to the complete exclusion of any order, ordinance or regulation by them.

Other provisions of Minnesota law expressly preempt all municipal and county regulation of:

  • The transfer of handguns1
  • The ownership, possession, or operation of machine guns, trigger activators, machine gun conversion kits, or short-barreled shotguns2
  • The issuance of “transferee permits” allowing the holder to purchase handguns and semi-automatic military-style weapons3
  • The issuance, nature, and scope of permits to carry handguns4
  • The carrying and possession of handguns, and the regulation of Saturday night special pistols”5
  • Anything related to ammunition or its component parts6

Exceptions

The Minnesota legislature has provided limited exceptions to its broad preemption of local firearms regulation. Local governments may regulate:

  • The discharge of firearms7
  • In ways identical to state law8
  • The location of businesses where guns are sold by a federally licensed firearms dealer if the regulations are reasonable, nondiscriminatory and nonarbitrary zoning ordinances9
  • Secondhand and junk dealers, although this authority is granted only to counties10

In addition, Minnesota law excludes school districts from the definition of governmental subdivisions that are preempted from regulating firearms. Section 471.634 provides that school districts may regulate firearms as they relate to school grounds, facilities, transportation services, programs, or the conduct of students at any school activities. 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.11

Finally, local units of government may regulate the use of firearms on state trails more restrictively than regulations provided by state rules.12

Interpretation

In an unpublished opinion, the Court of Appeals of Minnesota rejected a preemption challenge to a school district’s expulsion policy for possession of a dangerous weapon on school property. In In re Expulsion of M.A.L.,13 the expelled student argued that the school district’s expulsion policy was preempted by Minnesota Statutes section 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 determined that the school district’s expulsion policy was not impliedly preempted by state law. Applying a four-part test first set out by the Minnesota Supreme Court in Mangold Midwest Co. v. Richfield,14 the M.A.L. court found 1) that the subject matter to be regulated, possession of a dangerous weapon on school property 2) was not so fully covered as to render it solely a matter of state concern, 3) that 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) that the school district’s regulation of the subject matter did not adversely affect the general population.15

The court also held that the state law providing the right to carry a properly stored gun in a motor vehicle, even on school property, without being subject to criminal punishment did not conflict with and therefore did not preempt the school’s expulsion policy because the statute does not permit a student to avoid the school disciplinary process and the school policy does not permit the school to initiate criminal proceedings.16

Other Statutory Provisions

During a state of emergency, government officials may not:

  • Prohibit, regulate, or curtail the otherwise lawful possession, carrying, transportation, transfer, defensive use, or other lawful use of any firearms, ammunition, components or accessories
  • Seize, commandeer, or confiscate any of these items (With limited exceptions)
  • Suspend or revoke a valid permit to carry a handgun
  • Close or limit 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 commerce17

Minnesota law specifies the authority of local units of government to regulate shooting ranges. A shooting range that operates in compliance with the state’s shooting range performance standards must be permitted to do all of the following:

  • 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
  • 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

To the extent consistent with certain immunity provisions, a local unit of government with zoning authority jurisdiction over a shooting range may enforce its applicable ordinances and permits.23

Immunity

For state laws prohibiting certain types of lawsuits against shooting ranges, see our page on Immunity Statutes in Minnesota.

Notes
  1. Minn. Stat. § 624.7132, subd. 16. ⤴︎
  2. Minn. Stat. § 609.67, subd. 6. ⤴︎
  3. Minn. Stat. § 624.7131, subd. 12. ⤴︎
  4. Minn. Stat. § 624.714, subd. 23. ⤴︎
  5. Minn. Stat. § 624.717. The Court of Appeals of Minnesota held that a city policy imposing requirements for a handgun permit in addition to the criteria set out in section 624.715, subdivision 5, violated the statutory directive of section 624.717. In re Application of Hoffman, 430 N.W. 2d 210, 213 (Minn. Ct. App. 1988). ⤴︎
  6. Minn. Stat. § 624.7191, subd. 4. ⤴︎
  7. Minn. Stat. § 471.633(a). ⤴︎
  8. Minn. Stat. § 471.633(b). ⤴︎
  9. Minn. Stat. § 471.635. ⤴︎
  10. Minn. Stat. § 471.924(1). Secondhand and “junk” dealers are persons engaged in the business of buying secondhand goods, including guns, but excluding used goods taken as part or full payment for new goods. Minn. Stat. § 471.925. ⤴︎
  11. Minn. Stat. § 609.66, subd. 1d(g). ⤴︎
  12. Minn. R. 6100.4100. ⤴︎
  13. In re Expulsion of M.A.L., 2002 Minn. App. LEXIS 1292, 2002 WL 31655343 (Minn. Ct. App. November 20, 2002). ⤴︎
  14. 274 Minn. 347, 356 (1966). ⤴︎
  15. In re Expulsion of M.A.L., 2002 Minn. App. LEXIS 1292, *5-*8. ⤴︎
  16. Id. at *8-*9. ⤴︎
  17. Minn. Stat. § 624.7192(c). ⤴︎
  18. Minn. Stat. § 87A.03, subd. 1(1) – (6). ⤴︎
  19. Minn. Stat. § 87A.03, subd. 1(5). ⤴︎
  20. Minn. Stat. § 87A.08, subd. 1(a). ⤴︎
  21. Minn. Stat. § 87A.05. ⤴︎
  22. Minn. Stat. § 87A.03, subd. 2. ⤴︎
  23. Minn. Stat. § 87A.08, subd. 1(a). ⤴︎

Local Authority to Regulate Firearms in Mississippi

Preemption Statutes

Mississippi Code Annotated section 45-9-51 states:

  1. Subject to the provisions of Section 45-9-53 [discussed below], 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.
  2. No public housing authority operating in this state may adopt any rule or regulation restricting a lessee or tenant of a dwelling owned and operated by such public housing authority from lawfully possessing firearms or ammunition or their components within individual dwelling units or the transportation of such firearms or ammunition or their components to and from such dwelling.

Counties and municipalities are also 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.1

Mississippi Code Annotated section 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.2

Exceptions

Mississippi Code Annotated section 45-9-53(1) provides that the restrictions of 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 other lawful purposes, 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 event3
  • Receipt of firearms by pawnshops

In addition, municipalities and counties may regulate the discharge of firearms. A municipality or county may not, however, 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 one of the following:

  • 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
  • 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.4

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting either section 45-9-51 or section 45-9-53.

The Mississippi Attorney General has addressed whether a municipal mayor or city council has the authority to ban gun shows in a municipality and at the Mississippi County Fairgrounds. The Attorney General opined that while the mayor in a mayor-council municipality (in this case, Jackson, Mississippi) has the authority to enforce the municipal charter and ordinances, he or she does not have the authority to regulate gun shows by executive order, particularly in light of the provisions of sections 45-9-51 and 45-9-53.5

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).6 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.

Extreme Preemption

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.7

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Mississippi.

Notes
  1. Miss. Code Ann. § 45-9-53(6). ⤴︎
  2. Miss. Code Ann. § 33-7-303(2). ⤴︎
  3. Miss. Code Ann § 45-9-53. ⤴︎
  4. Miss. Code Ann. § 45-9-53(1)(b). ⤴︎
  5. Miss. Op. Att’y Gen. 2006-00220 (2006); 2006 Miss. AG LEXIS 200, *4. ⤴︎
  6. Id. at *4-*5. ⤴︎
  7. Miss. Code Ann § 45-9-53. ⤴︎

Local Authority to Regulate Firearms in Missouri

Preemption Statutes

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 specifically states:

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 discussed below].2

Any existing or future orders, ordinances, or regulations in this field are “null and void except as provided in subsection 3 of this section [discussed below].”3

Exceptions

Subsection 3 of section 21.750 allows political subdivisions to:

  • Enact ordinances conforming exactly to the provisions of sections 571.010 through 571.070 of the Missouri Revised Statutes, which regulate 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 weapons4
  • Regulate the “open carrying of firearms readily capable of lethal use.”5 In 2014, the statute was amended to exempt “any person with a valid concealed carry endorsement or permit” from any local ordinance prohibiting the open carrying of firearms6
  • Regulate the discharge of firearms7 This statute also includes the following provision: “No ordinance shall be construed to preclude the use of a firearm in the defense of person or property . . . .”8

Interpretation

In City of Cape Girardeau v. Joyce, the Court of Appeals of Missouri rejected a challenge to section 21.750 under article 1, § 23 of the Missouri Constitution (the state “right to keep and bear arms”). 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.9

Other Statutory Provisions

Missouri political subdivisions are precluded from filing certain lawsuits against the firearms industry relating to the “lawful design, manufacture, marketing, distribution, or sale of firearms or ammunition to the public.”10

Moreover, 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”11
  • Missouri grants authority to the boards of trustees of villages and towns to “prohibit the firing of firearms”12
  • 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”.13

Finally, Missouri Revised Statutes section 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.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Missouri.

Notes
  1. Mo. Rev. Stat. § 21.750.1. ⤴︎
  2. Mo. Rev. Stat. § 21.750.2. ⤴︎
  3. Mo. Rev. Stat. § 21.750.1. ⤴︎
  4. Mo. Rev. Stat. § 21.750.3(1). ⤴︎
  5. Id. ⤴︎
  6. Mo. Rev. Stat. § 21.750.3(2). ⤴︎
  7. Mo. Rev. Stat. § 21.750.3(1). ⤴︎
  8. Id. ⤴︎
  9. Joyce, 884 S.W.2d at 35. ⤴︎
  10. Mo. Rev. Stat. § 21.750.5. Note that the statute specifically allows actions by the state or a political subdivision for “breach of contract or warranty as to firearms or ammunition purchased by the state or such political subdivision.” Mo. Rev. Stat. § 21.750.6. ⤴︎
  11. Mo. Rev. Stat. §§ 77.570 and 79.450.2. ⤴︎
  12. Mo. Rev. Stat. § 80.090.6. ⤴︎
  13. Mo. Rev. Stat. § 79.460. ⤴︎

Local Authority to Regulate Firearms in Montana

Preemption Statute

The Montana Legislature has enacted a preemption statute. Montana Code Annotated section 45-8-351(1) provides that:

Except as provided in subsection (2) [discussed below], 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.

Exceptions

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 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.
  • A local government unit may “prevent and suppress” the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors.

Interpretation

One court in Montana has held that section 45-8-351 does not restrict the powers of a self-governing city.1 In City of Helena v. Yetter,2 the First Judicial District Court of Montana upheld the city of Helena’s ordinance prohibiting the possession of a loaded firearm. The court rejected the argument that the ordinance was preempted by section 45-8-351, finding that the city had adopted a self-governing charter and the law does not “specifically state that [section 45-8-351] applies to local governments with self-government powers.”3

In addition, 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.4 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 could not enforce it in that area.5 Nevertheless, the Attorney General found that the city could 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.6

Other Statutory Provisions

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.

Section 45-8-351(2)(c) precludes local ordinances that prohibit a legislative security officer, who has been issued a concealed weapon permit, from carrying a concealed weapon in the state capitol.

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.7

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.

Shooting Ranges

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
  • 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.

Section 76-9-105 governs a local unit of government’s ability to interfere with the operation of a shooting range. 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.8 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
  • The agency or unit of local government pays the appraised cost of the land (together with improvements) to the operators of the shooting range9

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.”10 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.”11

Finally, section 45-8-111(5) states that “[n]oises resulting from the shooting activities at a shooting range during established hours of operation are not considered a public nuisance.”

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Montana.

Notes
  1. In Montana, a local government has self-government powers if it has adopted a self-government charter, which allows the local government to exercise any power not prohibited by the state’s constitution, laws, or the charter itself. Mont. Const. art. XI, § 6. ⤴︎
  2. 1993 Mont. Dist. LEXIS 172 (1993). ⤴︎
  3. Id. at *2. ⤴︎
  4. 42 Mont. Op. Att’y Gen. 8 (1987), 1987 Mont. AG LEXIS 42, *4-5. ⤴︎
  5. Id. at *6-8. ⤴︎
  6. Id. at *8-9. ⤴︎
  7. This language was originally codified in section 47A-7-201, which was enacted in 1975. ⤴︎
  8. Mont. Code Ann. § 76-9-105(1), (3). ⤴︎
  9. Mont. Code Ann. § 76-9-105(2). ⤴︎
  10. Mont. Code Ann. § 7-5-2109(1)(b). ⤴︎
  11. Mont. Code Ann. § 7-5-2111(4). ⤴︎

Local Authority to Regulate Firearms in Nebraska

Preemption Statutes

In Nebraska, state law will preempt 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.1

Nebraska law expressly limits local authority to regulate firearms or ammunition only in the context of concealed handgun permit holders. Specifically, section 18-1703 of the the Revised Statutes of Nebraska prohibits cities and villages from regulating “the ownership, possession, or transportation of a concealed handgun.” The statute also prohibits cities and villages from requiring registration of a concealed handgun owned, possessed, or transported by a permit holder under the Concealed Handgun Permit Act, and voids any existing ordinance, permit, or regulation requiring such registration.2

Exceptions

Nebraska law expressly grants the following limited authority to local jurisdictions to regulate firearms:

  • Cities of 300,000 or more inhabitants (cities of the metropolitan class) 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.”3
  • Cities with between 100,000 and 300,000 inhabitants (cities of the primary class) may “prevent use of firearms…and prohibit carrying of concealed weapons” consistent with the Concealed Handgun Permit Act4
  • Cities with between 5,000 and 100,000 inhabitants (cities of the first class) 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 Act5
  • Cities with between 800 and 5,000 inhabitants (cities of the second class) and villages 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.6

In addition, local regulation of handgun purchases enacted before September 6, 1991 are valid notwithstanding state laws regulating the transfer of handguns.7 Apart from handguns covered by the Concealed Handgun Permit Act, it is not clear whether new local regulation of the transfer of handguns would be preempted by state law.

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting these statutes.

Other Statutory Provisions

Nebraska also restricts localities’ ability to regulate certain aspects of shooting ranges:

  • Any shooting range in existence as of August 30, 2009 (the effective date of the Nebraska Shooting Range Protection Act8) 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 standards9
  • Any laws adopted by local governments that would regulate the discharge of a firearm or the associated noise at an existing and lawful shooting range are unenforceable, except that 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 operate10
  • A city, county, village or other political subdivision may regulate the location and construction of a shooting range11

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Nebraska.

Notes
  1. State ex rel. City of Alma v. Furnas County Farms, 667 N.W.2d 512, 522-23 (Neb. 2003). ⤴︎
  2. Neb. Rev. Stat. § 18-1703. 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. See Neb. Rev. Stat. , §§ 69-2401, et seq. ⤴︎
  3. Neb. Rev. Stat. §§ 14-101, 14-102(6). ⤴︎
  4. Neb. Rev. Stat. §§ 15-101, 15-255. ⤴︎
  5. Neb. Rev. Stat. §§ 16-101, 16-227. ⤴︎
  6. Neb. Rev. Stat. §§ 17-101, 17-556. ⤴︎
  7. Neb. Rev. Stat. § 69-2425. Handgun transfers in Nebraska are regulated by Neb. Rev. Stat. § 69-2401 et seq. Section 69-2401 specifically provides that “[t]he state has a valid interest in the regulation of the purchase, lease, rental, and transfer of handguns.” ⤴︎
  8. Neb. Rev. Stat. § 37-1301 et seq. ⤴︎
  9. Neb. Rev. Stat. § 37-1304. ⤴︎
  10. Neb. Rev. Stat. §§ § 37-1305, 37-1306, & 37-1308. ⤴︎
  11. Neb. Rev. Stat. § 37-1310(1). ⤴︎

Local Authority to Regulate Firearms in Nevada

Preemption Statute

The Nevada Legislature has preempted cities, towns, and counties from regulating firearms. The Nevada Legislature has expressly reserved for itself the authority

to regulate the transfer, sale, purchase, possession, carrying, ownership, transportation, storage, registration and licensing of firearms, firearm accessories and ammunition in Nevada and to define such terms.1

The statute deems null and void any ordinance inconsistent with this statute, or “designed to restrict or prohibit the sale, purchase, transfer, manufacture or display of firearms, firearm accessories or ammunition that is otherwise lawful under the laws of this State,” and requires a local jurisdiction’s governing body to repeal any ordinance that violates this statute.2

Exceptions

The state allows local regulation of firearms in limited circumstances. Cities, towns, and counties, may regulate:

  • The “unsafe discharge of firearms”3
  • The carrying of firearms by public employees during or in the course of official duties4
  • Firearm businesses, including shooting ranges, through zoning or business regulations that are “generally applicable to businesses” within the jurisdiction5

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting Nevada’s preemption statute.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Nevada.

Notes
  1. Nev. Rev. Stat. Ann. §§ 268.418(2) (applicable to incorporated cities and towns), 244.364(2) (applicable to counties), and 269.222(2) (applicable to unincorporated towns). ⤴︎
  2. Nev. Rev. Stat. Ann. §§ 268.418(4), (5) (applicable to incorporated cities and towns), 244.364(4), (5) (applicable to counties), and 269.222(4), (5) (applicable to unincorporated towns). ⤴︎
  3. Nev. Rev. Stat. Ann. §§ 268.418(3) (applicable to incorporated cities and towns), 244.364(3) (applicable to counties), and 269.222(3) (applicable to unincorporated towns). ⤴︎
  4. Nev. Rev. Stat. Ann. §§ 268.418(8)(c) (applicable to incorporated cities and towns), 244.364(8)(c) (applicable to counties), and 269.222(8)(c) (applicable to unincorporated towns). ⤴︎
  5. Nev. Rev. Stat. Ann. §§ 268.418(8)(d) (applicable to incorporated cities and towns), 244.364(8)(d) (applicable to counties), and 269.222(8)(d) (applicable to unincorporated towns).
    Note, however, that a shooting range is not subject to any local noise control law adopted or amended after October 1, 1997, and does not constitute a civil or criminal nuisance for failure to comply with any such law. Nev. Rev. Stat. Ann. §§ 40.140(3) (civil), 202.450(6) (criminal). ⤴︎

Local Authority to Regulate Firearms in New Hampshire

Preemption Statute

New Hampshire has reserved to the state broad authority to regulate firearms. Section 159:26(I) of the New Hampshire Revised Statutes provides that

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.

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.

Exceptions

Section 159:26(I) expressly preserves local government authority to adopt non-discriminatory zoning ordinances and to exercise its property rights concerning the management of wildlife on land it owns and controls.1

Interpretation

As of the date this page was updated, the Giffords Law Center is not aware of any case law interpreting section 159:26. However, in State v. Jenkins,2 the Supreme Court of New Hampshire had occasion to review a local by-law that prohibited hunting and the discharge of a firearm in the entire town unless written permission of the owner was obtained. Applying New Hampshire common law preemption jurisprudence, the court held that the by-law was invalid because it was inconsistent with state hunting statutes that allowed the discharge of firearms on certain other properties at certain times of year.3

Other Relevant Provisions

The ability of local governments in New Hampshire to impose limits on noise and noise pollution from shooting ranges is limited by sections 159-B:1-159-B-8 of the New Hampshire Revised Statutes.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in New Hampshire.

Notes
  1. N.H. Rev. Stat. Ann. §§ 159.26(I), 207:59. ⤴︎
  2. 162 A.2d 613 (N.H. 1960). ⤴︎
  3. Id. at 614. ⤴︎

Local Authority to Regulate Firearms in New Jersey

Home Rule

Article 4, § VII, par. 11 of the New Jersey State Constitution1 confers broad regulatory 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.

New Jersey Statutes Annotated § 40:41A-27(b) expressly permits charter counties, subject to their charters, New Jersey general laws, and the New Jersey State Constitution, to, inter alia, “[a]dopt, amend, enforce, and repeal ordinances and resolutions.”

New Jersey Statutes Annotated § 40-48-2 grants municipalities2 the authority to 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.3 And New Jersey Statutes Annotated § 40:41A-28 recognizes municipalities 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.”

Preemption Statute

With specific regard to firearms, New Jersey Statutes Annotated § 40:48-1(18) explicitly authorizes municipalities to “[r]egulate and prohibit the sale and use of guns, pistols, [and] firearms…”

Furthermore, the New Jersey State Legislature has codified its intent that the New Jersey Code of Criminal Justice preempt conflicting local regulation, either by inclusion or exclusion of a provision in the code. New Jersey Statutes Annotated § 2C:1-5(d) 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 [the New Jersey Code of Criminal Justice] 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, the absence of a state ban on certain conduct could indicate a legislative intent to “decriminalize” that conduct, and local regulation prohibiting such conduct could be deemed preempted by exclusion under section 2C:1-5(d).4 Moreover, the regulation of a subject matter in the New Jersey Code of Criminal Justice may preempt a municipal ordinance from regulating that same subject matter.5

Interpretation

Common Law Preemption Jurisprudence In New Jersey

The broad regulatory authority granted to local government in New Jersey is further constrained by the jurisprudential doctrine of preemption.

In Overlook Terrace Management Corp. v. Rent Control Board of West New York,6 the Supreme Court of New Jersey developed a two-step test to determine 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.”7 If the subject matter is not the same, “preemption is clearly inapplicable.”8 If it is the same, the court must then consider the following five factors to determine if the legislature intended to preempt the subject matter:

  1. 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?)
  2. Whether the legislature intended, expressly or impliedly, that state law be exclusive in the field
  3. Whether the subject matter reflects a need for uniformity
  4. Whether the state scheme is so pervasive or comprehensive that it precludes the coexistence of municipal regulation
  5. Whether the ordinance stands “as an obstacle to the accomplishment and execution of the full purposes and objectives” of the legislature9

In Township of Chester v. Panicucci,10 the Supreme Court of New Jersey held that a state 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.”11 The court also 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.12

Note that Panicucci was decided before the Supreme Court adopted the preemption factors in Overlook Terrace, before the enactment of section 2C:1-5(d), and before the enactment of many of New Jersey’s firearm-related statutes. As such, its authoritative value today for the authority of municipalities to regulate firearms is uncertain. However, in State v. Crawley (discussed above), a case decided after Overlook Terrace and after the enactment of section 2C:1-5(d), Supreme Court of New Jersey, in holding that the legislature’s repeal of a state law prohibiting loitering preempted by exclusion a Newark ordinance that criminalized loitering, noted and essentially reaffirmed its finding in Panicucci 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.13

Moreover, in Faraci v. Monmouth County Bd. of Rec. Comm’rs, a state appeals court found, in an unpublished opinion, 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.14 The appeals court found that the municipal ordinance met all five Overlook Terrace factors, favoring preemption, and noted that its decision was consistent with the ruling in Panicucci.

Finally, in 2008, in Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 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.15 However, that appellate court opinion and judgment were vacated, and the appeal dismissed as moot, by the Supreme Court of New Jersey after the state legislature adopted an identical 30-day handgun sales limitation while the appeal was still pending.16

Notes
  1. “New Jersey State Constitution 1947. Updated through amendments adopted in November 2017.” New Jersey State Legislature, accessed November 19, 2018, https://www.njleg.state.nj.us/lawsconstitution/constitution.asp. ⤴︎
  2. The definition of “municipalities” includes cities, towns, townships, villages, and boroughs, and any “municipality governed by a board of commissioners, or improvement commission.” N.J. Stat. Ann. § 40:42-1. ⤴︎
  3. 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.” Twp. of Chester v. Panicucci, 299 A.2d 385, 387-88 (N.J. 1973). ⤴︎
  4. See, e.g., State v. Crawley, 447 A.2d 565 (N.J. 1982) (The legislature’s repeal of a state law prohibiting loitering had the effect of preempting by exclusion a Newark ordinance that criminalized loitering). ⤴︎
  5. See, e.g., G.H. v. Township of Galloway, 951 A.2d 221, 238 (App.Div. 2008), aff’d, 971 A.2d 401, (N.J. 2009) (holding that municipal ordinances prohibiting convicted sex offenders from living within specified distances of schools and other designated facilities were preempted by state law regulating convicted sex offenders). ⤴︎
  6. 366 A.2d 321 (N.J. 1976). ⤴︎
  7. Id. at 326. ⤴︎
  8. Id. ⤴︎
  9. Id. ⤴︎
  10. 299 A.2d 385 (N.J. 1973). ⤴︎
  11. Id. at 389. ⤴︎
  12. Id. at 390. ⤴︎
  13. Crawley, 447 A.2d at 570. ⤴︎
  14. 2010 N.J. Super. Unpub. LEXIS 151, at *10-*11. ⤴︎
  15. 955 A.2d 1003 (N.J. Super. Ct. App. Div. 2008). ⤴︎
  16. See Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 992 A.2d 1 (N.J. 2010). ⤴︎

Local Authority to Regulate Firearms in New Mexico

Preemption Statute

The police power of municipalities and counties in New Mexico is limited in the area of firearms regulation. Article II, § 6 of the Constitution of New Mexico, which provides citizens of New Mexico with the right to bear arms, was amended in 1986 to include the following: “No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.”

Exception

Local governments, have the authority to regulate “the location and construction of sport shooting ranges after July 1, 2002.”1

Interpretation

In 2002, the Supreme Court of New Mexico had occasion to interpret article II, § 6 of the Constitution of New Mexico. In Baca v. New Mexico Dept. of Public Safety, the plaintiff challenged a provision of New Mexico’s Concealed Handgun Carry Act that provided municipalities and counties with the authority to prohibit the carrying of concealed weapons, arguing that the provision delegated to localities the power to regulate an incident of the right to keep and bear arms in violation of Article II, § 6.2 The court agreed and held that the provision was unconstitutional. It found that the broad language of Article II, § 6 prohibiting municipalities and counties from regulating an incident of the right to keep and bear arms in any way indicated the intent to preclude piecemeal administration at a local level and to ensure uniformity in the regulation of firearms throughout New Mexico.3 The court also concluded that the manner in which a person bears a weapon is an “incident of the right to bear arms” under article II, § 6.4

As of the date this page was last updated, Giffords Law Center is aware of only one other interpretation of the preemptive effect of article II, § 6 set forth in an opinion of the Attorney General of New Mexico. The Attorney General 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 the amended article II, § 6 removed that authority.5 Further, the opinion that an “incident” of the right to keep and bear arms pursuant to article II, § 6 includes the transfer of weapons.6

Immunity

For state laws prohibiting certain types of lawsuits against shooting ranges, see our page on Immunity Statutes in New Mexico.

Notes
  1. N.M. Stat. Ann. § 17-8-5. ⤴︎
  2. 47 P.3d 441, 443-44 (N.M. 2002). ⤴︎
  3. Id. at 444. ⤴︎
  4. Id. ⤴︎
  5. Op. Att’y Gen. No. 90-07 (1990), 1990 N.M. AG LEXIS 5 at *2,*6. ⤴︎
  6. Id. at *4-*5. ⤴︎

Local Authority to Regulate Firearms in New York

Home Rule

New York Constitution Art. IX, section 2(c) and New York Municipal Home Rule Law section 10(1)(ii)(a)(12) (containing substantially the same language) confer 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

In DJL Restaurant Corp. v. City of New York, a non-firearms case from 2001, the New York Court of Appeals (the highest court in New York) explained the two ways 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 the state occupies, either expressly or by implication.2 Conflict occurs when local law prohibits conduct the state either allows or does not proscribe, or imposes additional restrictions on rights granted by state law.3 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.”4

Interpretation

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 1999 in People v. Stagnitto, the New York Court of Appeals (the highest court in New York) 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.”5

In the 1968 case Grimm v. City of New York, a court determined that New York City’s licensing and registration law regarding rifles and shotguns was not preempted by state law.6 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.”7

In a 1994 case, Citizens for a Safer Community v. City of Rochester, 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.8 “Clearly, the State has not, either directly or indirectly, regulated all aspects of gun possession and use as to time, place and circumstance.”9 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).10

In the 2014 case De Illy v. Kelly, a New York appellate court upheld a local regulation that allows firearm possession restricted by state law.11 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 (N.Y. Penal Law § 400.00(2)(a)) 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.12

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, the court held that New York state law implicitly preempted a Nassau County ordinance prohibiting the possession of “deceptively colored” handguns.13 The court found 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.14 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.15

In the 1968 case People v. Kearse, 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.16 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.”17

Finally, in 1955 in People v. Del Gardo, the court invalidated a New York City ordinance banning any toy or imitation handgun that “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.”18

Notes
  1. N.Y. Const. art. IX, § 2(c), N.Y. Mun. Home Rule Law § 10(1)(i), (ii). ⤴︎
  2. 749 N.E.2d 186, 190 (N.Y. 2001). ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. People v. Stagnitto, 691 N.Y.S.2d 223, 225 (N.Y. App. Div. 4th Dep’t 1999); 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.”). ⤴︎
  6. 289 N.Y.S.2d 358, 363 (N.Y. Sup. Ct. Queens Co. 1968). ⤴︎
  7. Id. ⤴︎
  8. 627 N.Y.S.2d 193, 201-202 (N.Y. Sup. Ct. 1994). ⤴︎
  9. Id. ⤴︎
  10. Id. at 206. ⤴︎
  11. 775 N.Y.S.2d 256 (N.Y. App. Div. 2004). ⤴︎
  12. Id. at 256-57. ⤴︎
  13. 915 N.Y.S.2d 578, 587 (N.Y. App. Div. 2010). ⤴︎
  14. Id. ⤴︎
  15. Id. ⤴︎
  16. 289 N.Y.S.2d 346, 350-51 (N.Y. City Ct., Syracuse 1968) (emphasis in original). ⤴︎
  17. Id. at 352. ⤴︎
  18. 146 N.Y.S.2d 350, 354 (City Magis. Ct. Manhattan 1955) (emphasis in original). ⤴︎

Local Authority to Regulate Firearms in North Carolina

Preemption Statute

North Carolina’s firearms preemption statute, North Carolina General Statutes section 14-409.40(a), states:

It is declared by the General Assembly that the regulation of firearms is properly an issue of general, statewide concern, and that the entire field of regulation of firearms is preempted from regulation by local governments except as provided by this section.

Section 14-409.40(b) specifically states:

Unless otherwise permitted by statute, no county or municipality, by ordinance, resolution, or other enactment, shall regulate 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.

Exceptions

North Carolina provides for several exceptions to its preemption law:

  • Cities and counties may enact non-discriminatory regulations or prohibitions of firearms sales at a location if there is a “lawful, general, similar regulation or prohibition of commercial activities” at the location.1
  • 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.2
  • Cities and counties may 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.3
  • 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.4
  • Cities and counties may regulate the transportation, carrying, and possession of firearms by their employees in the course of that employment.5
  • 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).6
  • Cities and counties may regulate or prohibit the discharge of firearms at any time or place, except when lawfully used to take animals (counties only), in defense of person or property, or when pursuant to lawful directions of law enforcement officers.7
  • Cities and counties may regulate the display of firearms on public roads, sidewalks, alleys or other public property.8
  • Cities and counties may regulate or prohibit the sale, possession or use of pellet guns.9

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting these statutes.

Other Statutory Provisions

North Carolina’s Sport Shooting Range Act of 199710 permits shooting ranges to continue in operation even if the range at a later date does not conform to a new or amended local ordinance, provided there has been no substantial change in use of the range.11 The Act does not prohibit a local government from regulating the location and construction of new sport shooting ranges.12

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in North Carolina.

Notes
  1. N.C. Gen. Stat. § 14-409.40(c). ⤴︎
  2. Id. ⤴︎
  3. N.C. Gen. Stat. §14-409.40(f). By its language, section 14-409.40(f) does not prohibit individuals from lawfully storing firearms within a motor vehicle when the vehicle is in any of these public locations. ⤴︎
  4. N.C. Gen. Stat. §14-415.23. ⤴︎
  5. N.C. Gen. Stat. § 14-409.40(e). ⤴︎
  6. N.C. Gen. Stat. §§ 14-409.40(f), 166A-19.31. ⤴︎
  7. N.C. Gen. Stat. §§ 160A-189 (cities), 153A-129(a) (counties. ⤴︎
  8. N.C. Gen. Stat. §§ 160A-189 (cities), 153A-129(c) (counties). ⤴︎
  9. N.C. Gen. Stat. §§ 160A-190 (cities), 153A-130 (counties). ⤴︎
  10. N.C. Gen. Stat. §§ 14-409.45 – 14-409.47 ⤴︎
  11. N.C. Gen. Stat. § 14-409.46(e). ⤴︎
  12. N.C. Gen. Stat. § 14-409.47. ⤴︎

Local Authority to Regulate Firearms in North Dakota

Preemption Statute

North Dakota Century Code section 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.

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting North Dakota’s preemption statute.

Other Statutory Provisions

Though 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.

Section 37-01-21 prohibits a municipality from raising or appropriating money toward arming, equipping, supporting, or providing drillrooms or armories for any body of people associating as a military company or parading in public with firearms, with some exceptions.1

Section 42-01-01.1 provides that 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. However, a political subdivision may regulate the location and construction of a sport shooting range after August 1, 1999.2 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.”

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against shooting ranges and the gun industry, see our page on Immunity Statutes in North Dakota.

Notes
  1. Exceptions include for escort duty at military burials, or for students in educational institutions where military science is taught. ⤴︎
  2. N.D. Cent. Code § 42-01-01.1. ⤴︎

Local Authority to Regulate Firearms in Ohio

Home Rule

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 by the enactment of a general law that conflicts with a given local ordinance.3

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.4 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.

Preemption Statute

Ohio Revised Code Annotated section 9.68(A) first took effect in March 2007. It was expanded in 2018. This updated version of section 9.68(A) (effective September 27, 2019) states:

The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, other transfer, manufacture, taxation, keeping, and reporting of loss or theft of firearms, their components, and their ammunition. … Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, including by any ordinance, rule, regulation, resolution, practice, or other action or any threat of citation, prosecution, or other legal process, may own, possess, purchase, acquire, transport, store, carry, sell, transfer, manufacture, or keep any firearm, part of a firearm, its components, and its ammunition …. the state by this section preempts, supersedes, and declares null and void any such further license, permission, restriction, delay, or process.

Exceptions

Ohio Revised Code Annotated section 9.68(D) provides the following exceptions:

  • Zoning ordinances that prevent gun sales in areas zoned for residential or agricultural use.
  • Zoning ordinances that are consistent with regulation of other retail businesses in the same area.

Interpretation

The City of Cleveland challenged the 2007 version of section 9.68 as a violation of Article XVIII, section 3. Despite the expansive home rule authority Article XVIII grants to municipalities, the Ohio Supreme Court upheld section 9.68 in 2010.5 The Supreme Court found section 9.68 met each prong of the general law test established by City of Canton v. State,6 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.”7 For example, in Ohioans for Concealed Carry, Inc. v. City of Clyde,8 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 Ohio adopted an explicit firearm preemption statute, 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.9 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.”10 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.11 Cincinnati’s ordinance was repealed in 2014.

Immunity

For state laws prohibiting certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Ohio.

Notes
  1. Ohio Const. Art. XVIII, §§ 1 and 3. ⤴︎
  2. Ohio Const. Art. X, § 3. ⤴︎
  3. Fondessy Enterprises, Inc. v. City of Oregon, 492 N.E.2d 797, 799-800 (Ohio 1986). ⤴︎
  4. McDonald v. City of Columbus, 231 N.E.2d 319, 320-22 (Ohio Ct. App. 1967). ⤴︎
  5. City of Cleveland v. Ohio, 128 Ohio St. 3d 135, 2010-Ohio-6318, 942 N.E.2d 370. ⤴︎
  6. 95 Ohio St. 3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 21. ⤴︎
  7. Fondessy Enterprises, Inc. v. City of Oregon, 492 N.E.2d 797, 801 (Ohio 1986). ⤴︎
  8. 120 Ohio St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967. ⤴︎
  9. 112 Ohio St. 3d 279, 2006-Ohio-6422, 859 N.E.2d 514. ⤴︎
  10. Id. at ¶ 20 (quoting Cincinnati v. Hoffman, 285 N.E.2d 714, 719 (Ohio 1972) ). ⤴︎
  11. Cincinnati v. Baskin, 112 Ohio St. 3d 279, 2006-Ohio-6422, 859 N.E.2d 514, at ¶ 23. ⤴︎

Local Authority to Regulate Firearms in Oklahoma

Preemption Statute

Oklahoma has enacted a firearms preemption statute.1 Section 1289.24(A)(1) states:

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.

Section 1289.24(B) 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.

Moreover, 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.”2

In 2012, the state 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

Exceptions

Municipalities may, however, adopt an ordinance:

  • Relating to the discharge of firearms within the jurisdiction
  • 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 the improper transportation of a firearm or knife may include a provision for confiscation of property.6

Interpretation

The Oklahoma Attorney General has opined that the boards of Oklahoma’s public libraries may ban patrons from bringing concealed weapons into the libraries.7 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.8

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.9

Other Statutory Provisions

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.10

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Oklahoma.

Notes
  1. Okla. Stat. Ann. tit. 21, § 1289.24 ⤴︎
  2. Okla. Stat. Ann. tit. 21, § 1290.25. ⤴︎
  3. Okla. Stat. Ann. tit. 21, § 1289.24(A)(3). ⤴︎
  4. Okla. Stat. Ann. tit. 21, § 1289.24(A)(2). ⤴︎
  5. Okla. Stat. Ann. tit. 21, § 1289.24(C). ⤴︎
  6. Id. ⤴︎
  7. OK Op. Att’y Gen. No. 95-96, 1996 Okla. AG LEXIS 32 (April 24, 1996). ⤴︎
  8. 1996 Okla. AG LEXIS 32, *2-*3. ⤴︎
  9. OK Op. Att’y Gen. No. 03-46, 2003 Okla. AG LEXIS 41 (Nov. 3, 2003). ⤴︎
  10. Okla. Stat. Ann. tit. 21, § 1321.4(B). ⤴︎

Local Authority to Regulate Firearms in Oregon

Preemption Statute

The Oregon Legislature has specifically preempted certain areas of firearms regulation. Oregon Revised Statutes section 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.

Exceptions

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 shooting.1
  • Cities can regulate the purchase of used firearms by pawnshops and secondhand stores.2
  • 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 facility.3

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 any of the following instances:

  • 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
  • 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 employment5

Interpretation

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.6 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.7

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 166.173.8

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).9 The court held that section 166.245 permitted local regulation of the possession, but not the sale, of firearms and ammunition.10

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 166.245.11 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.12

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 section 166.170(1) preempted the district policy. While the appellate court disagreed with the trial court’s conclusion that section 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.”13

In Or. Firearms Educ. Found. v. Bd. of Higher Educ.,14 an appellate court held that an administrative rule of the Oregon State Board of Higher Education that imposed sanctions on persons who possess or use firearms on university property was preempted by section 166.170. In response to this decision and relying on the holding in Medford, in 2012, the Oregon State Board of Higher Education used its authority to craft an internal policy regarding the use of its property that prohibits certain individuals from possessing guns, including concealed carry, from classrooms, buildings, dormitories, and sporting and entertainment events. Individuals with concealed carry permits are still permitted to bring guns in other areas of campus.15

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 section 166.173 restricts local governments from prohibiting the carrying of a loaded firearm within a car on a public street.16 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.17

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.18 This legislative decision displaced the city’s ordinance.19

Other Statutory Provisions

The preemption provisions in sections 166.170 and 166.171 are not intended to affect county ordinances regulating the discharge of firearms in effect on November 2, 1995.20 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 166.171.21 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.”22

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.23

Immunity

For information on statutes that provide shooting ranges with immunity from lawsuits, see our page on Immunity Statutes in Oregon.

Notes
  1. Or. Rev. Stat. Ann. § 166.172 ⤴︎
  2. Or. Rev. Stat. Ann. § 166.175 ⤴︎
  3. Or. Rev. Stat. Ann. § 166.173 ⤴︎
  4. Or. Rev. Stat. Ann. § 166.174 ⤴︎
  5. Or. Rev. Stat. Ann. § 166.171. ⤴︎
  6. Langlotz, 39 P.3d at 274. ⤴︎
  7. Langlotz, 39 P.3d at 274. ⤴︎
  8. Starrett, 102 P.3d 728 at 733. ⤴︎
  9. Oregon State Shooting Ass’n, 858 P.2d at 1322-23. ⤴︎
  10. Id. at 1323. ⤴︎
  11. Oregon State Shooting Ass’n, 858 P.2d at 1323-24. ⤴︎
  12. Id. at 1323. ⤴︎
  13. Medford Sch. Dist., 549C, 221 P.3d at 799. ⤴︎
  14. 245 Ore. App. 713, 717, 722-23 (Or. Ct. App. 2011). ⤴︎
  15. Bill Graves, “Oregon State Board of Higher Education Resorts to Policy to Ban Guns on Campus,” The Oregonian, March 2, 2012, www.oregonlive.com/education/index.ssf/2012/03/oregon_state_board_of_higher_e_7.html. ⤴︎
  16. Ward, 198 P.3d at 444-45. ⤴︎
  17. Id. at 445. ⤴︎
  18. Id. at 417-418. ⤴︎
  19. Id. at 418. ⤴︎
  20. Or. Rev. Stat. § 166.176. ⤴︎
  21. Section 166.176. ⤴︎
  22. 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. Or. Rev. Stat. § 197.770(2). ⤴︎
  23. Or. Rev. Stat. § 467.136. ⤴︎

Local Authority to Regulate Firearms in Pennsylvania

Preemption Statute

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

Interpretation

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

In Clarke v. House of Representatives, an intermediate appellate court held that section 6120(a) preempted several firearm-related ordinances enacted by the City of Philadelphia in May of 2007.7 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
  • 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.8 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.”9 This decision was affirmed, without a published opinion, by the Supreme Court of Pennsylvania.10

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 2008.11 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.12 The Supreme Court of Pennsylvania refused to hear the case on appeal, thereby affirming the decision without a written opinion.13

On the other hand, a lower court has held that section 6120(a) does not preempt ordinances that regulate firearm possession that is already unlawful. Thus, where plaintiffs attempted to carry firearms into a courthouse in violation of an ordinance that 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.14 Later, in Minich v. County of Jefferson, the court rejected a claim that the county lacked authority to enact the same ordinance.15 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.16

Finally, in Gun Range, LLC v. City of Phila., an intermediate appellate court, in an unpublished opinion, held that section 6120(a) does not preempt a municipal zoning ordinance regulating only the location of gun shops and not the manner in which the gun shop conducts its business nor whether gun shops can operate at all within the jurisdictional limits of the municipality.17

Extreme Preemption

In 2014, Pennsylvania had enacted a law providing a cause of action for individuals as well as membership organizations such as the NRA to enforce section 6120(a).18 It also allowed a successful plaintiff to recover attorney’s fees and other reasonable expenses.19 In Leach v. Commonwealth, however, the Supreme Court of Pennsylvania, struck down these provisions after finding that the original bill failed to satisfy the mandate of Article III, Section 3 of the Pennsylvania Constitution that each bill contain only one subject.20

Other Statutory Provisions

Other state laws also restrict the ability of municipalities to enact firearm laws.

Title 53, Pa. Cons. Stat. Ann. § 2962(g) states that “a municipality shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms.”

Cities in Pennsylvania, however, may regulate the “unnecessary firing and discharge of firearms in or into the highways and other public places.”21 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.”22 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.”23

Title 16, Pa. Stat. Ann. § 6107-C(k) states that second class counties (those having a population between 800,000 and 1,500,000) may not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms.

Title 53, Pa. Stat. Ann. § 56531 states that first class townships (those having a population of at least three hundred inhabitants to the square mile) may regulate, license and fix the time of opening and closing of shooting galleries.

Immunity

For information on statutes that provide shooting ranges and the gun industry with immunity from lawsuits, see our page on Immunity Statutes in Pennsylvania.

Notes
  1. 18 Pa. Cons. Stat. Ann. § 6120(a). ⤴︎
  2. Ortiz v. Commonwealth, 681 A.2d 152, 155 (Pa. 1996). ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. Id. at 156. ⤴︎
  6. Schneck v. Philadelphia, 383 A.2d 227 (Pa. Commw. Ct. 1978); see also Firearm Owners Against Crime v. Lower Merion Twp., 151 A.3d 1172, 2016 Pa. Commw. LEXIS 545 (holding that section 6120(a) preempted an ordinance prohibiting possession of a firearm in a township park without a special permit; 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); Dillon v. City of Erie, 83 A.3d 467, 2014 Pa. Commw. LEXIS 29, 2014 WL 37840 (holding that section 6120(a) preempted an ordinance prohibiting hunting and firearms in the city’s parks). ⤴︎
  7. Clarke v. House of Representatives, 957 A.2d 361 (Pa. Commw. Ct. 2008). ⤴︎
  8. Id. at 364. ⤴︎
  9. Id. at 364-65. ⤴︎
  10. Clarke v. House of Representatives, 980 A.2d 34 (Pa. 2009). ⤴︎
  11. Nat’l Rifle Assn. v. Philadelphia, 977 A.2d 78, 78-83 (Pa. Commw. Ct. 2009). ⤴︎
  12. Id. at 82-83. ⤴︎
  13. NRA v. City of Philadelphia, 606 Pa. 677 (2010). ⤴︎
  14. 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”). ⤴︎
  15. Minich v. County of Jefferson, 919 A.2d 356 (Pa. Commw. Ct. 2007). ⤴︎
  16. Id. ⤴︎
  17. 2018 Pa. Commw. Unpub. LEXIS 248, 2018 WL 2090303, *17. ⤴︎
  18. 2013 Pa. HB 80. ⤴︎
  19. Id. ⤴︎
  20. 636 Pa. 81, 95 (2016). The original bill had created not only a civil cause of action to challenge municipal firearms legislation, but also created new offenses relating to the theft of copper and aluminum. ⤴︎
  21. 53 Pa. Stat. Ann. § 3703. ⤴︎
  22. 53 Pa. Stat. Ann. § 23131. ⤴︎
  23. 511 Pa.C.S. § 12423. ⤴︎

Local Authority to Regulate Firearms in Rhode Island

Preemption Statute

Rhode Island’s preemption statute, Rhode Island General Laws section 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.

Interpretation

Sullivan v. Town of Coventry and Town of Middletown, 2010 R.I. Super. LEXIS 53 (Mar. 17, 2010), confirms that section 45-6-1 provides 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

As of the date this page was last updated, Giffords Law Center is not aware of any significant cases interpreting section 11-47-58.

Other Statutory Provisions

Section 11-47-50, which 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, specifically authorizes cities and towns to enact ordinances that permit the discharge of such firearms on non-posted lands within the jurisdiction.3

Immunity

For state laws prohibiting the filing of certain types of lawsuits against the shooting ranges, see our page on Immunity Statutes in Rhode Island.

Notes
  1. Sullivan, 2010 R.I. Super. LEXIS at *4-*9. ⤴︎
  2. Id. at *10-*15. ⤴︎
  3. Section 11-47-50(a). ⤴︎

Local Authority to Regulate Firearms in South Carolina

Preemption Statutes

The South Carolina Legislature preempts many 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

State law also expressly denies any county, municipality or political subdivision the power to confiscate a firearm or ammunition unless incident to arrest.3

Exceptions

Three express exceptions exist to South Carolina’s preemption provisions. Counties, municipalities and other political subdivisions in South Carolina may regulate the following:

  • Careless or negligent discharge of firearms
  • Public brandishment of firearms
  • Public brandishment of firearms during times of insurrection, invasions, riots or natural disasters, or when there is a demonstrated potential for such events4

Interpretation

There are no cases interpreting sections 23-31-510 or 23-31-520. However, 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, which permits 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 workplace, 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

Other Statutory Provisions

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.8

A local government is not otherwise prohibited from regulating the location and construction of a new shooting range after May 1, 2000.9

Immunity

For state laws prohibiting the filing of certain types of lawsuits against the gun industry and shooting ranges, see our page on Immunity Statutes in South Carolina.

Notes
  1. S.C. Code Ann. § 23-31-510(1). ⤴︎
  2. S.C. Code Ann. § 23-31-510(2). ⤴︎
  3. S.C. Code Ann. § 23-31-520. ⤴︎
  4. S.C. Code Ann. § 23-31-520. ⤴︎
  5. 2009 S.C. AG LEXIS 38 (March 5, 2009). ⤴︎
  6. 2009 S.C. AG LEXIS 38 (March 5, 2009), *8-*9. ⤴︎
  7. 1991 S.C. AG LEXIS 218 (October 3, 1991). ⤴︎
  8. S.C. Code Ann. § 31-18-40. ⤴︎
  9. S.C. Code Ann. § 31-18-50. ⤴︎

Local Authority to Regulate Firearms in South Dakota

Preemption Statutes

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.

Interpretation

As of the date this page was last updated, Giffords Law center is not aware of any cases interpreting these statutes.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in South Dakota.

Local Authority to Regulate Firearms in Tennessee

Preemption Statute

Tennessee Code Annotated section 39-17-1314(a) states:

[T]he 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.

Exceptions

Local regulation is permitted where explicitly provided by Tennessee Code Annotated section 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 if in compliance with specific signage requirements set forth in Tenn. Code Ann. section 39-17-1359(b), including gun possession by any person with a Tennessee handgun carry permit if certain security measures are in place pursuant to Tenn. Code Ann. section 39-17-1359 (g), at meetings conducted by, or on property owned, operated, managed or under the control of the government entity.2

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant cases interpreting Tennessee’s preemption statutes.

However, the Tennessee Attorney General has addressed whether local governments may prohibit the possession of handguns or long guns on publicly owned property.3 Reviewing the provisions of both Tennessee Code Annotated sections 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.4 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.5

Other Statutory Provisions

Tennessee law prohibits 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.6

Under Tennessee law, municipalities or counties do not have authority 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.7

Tennessee law authorizes 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.8

Finally, Tennessee law prohibits local municipalities from enforcing an ordinance that prohibits discharging a firearm within the local municipality in instances where it can be shown that the firearm was discharged for purposes of self-defense or to otherwise prevent the commission of a crime:9

  • (a) A person shall not be charged with or convicted of a violation under this part if the person possessed, displayed or employed a handgun in justifiable self-defense or in justifiable defense of another during the commission of a crime in which that person or the other person defended was a victim.
  • (b) A person who discharges a firearm within the geographical limits of a municipality shall not be deemed to have violated any ordinance in effect or be subject to any citation or fine the municipality may impose for discharging a firearm within the limits of the municipality if it is determined that when the firearm was discharged the person was acting in justifiable self-defense, defense of property, defense of another, or to prevent a criminal offense from occurring.

Immunity

For state laws prohibiting the filing of certain types of lawsuits against the gun industry and shooting ranges, see our page on Immunity Statutes in Tennessee.

Notes
  1. Tenn. Code Ann. § 39-17-1314(a). ⤴︎
  2. Tenn. Code Ann. § 39-17-1359(g)(1). These 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. Tenn. Code Ann. § 39-17-1359(g)(2). ⤴︎
  3. Op. Att’y Gen. 04-020, 2004 Tenn. AG LEXIS 20 (Feb. 9, 2004). ⤴︎
  4. Opinion No. 04-020, at *1-*2, *6. ⤴︎
  5. Op. Att’y Gen. 09-118, 2009 Tenn. AG LEXIS 154 (June 12, 2009). ⤴︎
  6. Tenn. Code Ann. § 39-17-1313(a). ⤴︎
  7. Tenn. Code Ann. § 39-17-1311. ⤴︎
  8. Tenn. Code Ann. § 9-17-1314. ⤴︎
  9. Tenn. Code Ann. § 39-17-1322(b). ⤴︎

Local Authority to Regulate Firearms in Texas

Municipal Authority

Preemption Statute

Texas has an explicit preemption statute that states:

[A] municipality may not adopt regulations relating to:

  1. the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies; or
  2. the discharge of a firearm or air gun at a sport shooting range.1

Exceptions

Municipalities retain the authority to:

  • Require residents or public employees to be armed for personal or national defense, law enforcement or another lawful purpose2
  • Regulate the discharge of firearms or air guns within the limits of the municipality, other than at a sport shooting range3
  • 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)4
  • 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.)5 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 handgun6
  • 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 consumption7
  • Regulate the carrying of an air gun by a minor on public property or on private property without the consent of the property owner8

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any cases interpreting these statutory preemption provisions.

However, the Texas Attorney General has issued a formal opinion that a Houston ordinance aimed at preventing children from discharging firearms was not preempted.9 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.10 In essence, the ordinance regulated the keeping and storing of firearms by adults.11 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.12

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.13

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.14

Other Statutory Provisions

In 2015, the legislature prohibited an agency or political subdivision from excluding from government property a concealed handgun license holder carrying a gun unless state law prohibits firearms on the premises.15 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 subdivision16 to collect civil penalties17 and expenses, including attorney fees.18

Immunity

For state laws prohibiting municipalities from filing certain types of lawsuits against the gun industry and shooting ranges, see our page on Immunity Statutes in Texas.

County Authority

Preemption Statutes

Counties are 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.19

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.20

Exceptions

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.”21

In addition, though the commissioners court of a county may authorize the issuance of an identification card to individuals, permitting entrance into a county building that houses a justice court, county court, county court at law, or district court without passing through security, the possession of that card does not authorize a person to possess a firearm in a county building that houses any of these courts.22

Interpretation

The Texas Attorney General has issued an opinion that counties may prohibit concealed handgun license holders from carrying concealed handguns in county parks,23 and that a rapid transit authority may prohibit concealed handgun licensees from carrying handguns while on public transportation.24

Immunity

For state laws prohibiting counties from filing certain types of lawsuits against the gun industry and shooting ranges, see our page on Immunity Statutes in Texas.

Notes
  1. Tex. Local Gov’t Code § 229.001(a). ⤴︎
  2. Tex. Local Gov’t Code § 229.001(b). ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. Id. Tex. Local Gov’t Code 229.001(c). ⤴︎
  6. Tex. Op. Att’y Gen. DM-364 (1995), 1995 Tex. AG LEXIS 94, *10-11. ⤴︎
  7. 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). ⤴︎
  8. 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….” ⤴︎
  9. 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. ⤴︎
  10. Id. at *2. ⤴︎
  11. Id. ⤴︎
  12. Id. at *3-4. ⤴︎
  13. Tex. Op. Att’y Gen. GA-0862 (2011), 2011 Tex. AG LEXIS 33. ⤴︎
  14. Tex. Op. Att’y Gen. DM-71 (1991), 1991 Tex. AG LEXIS 87, *10. ⤴︎
  15. 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). ⤴︎
  16. Tex. Gov’t Code § 411.209(d)-(f). ⤴︎
  17. 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”). ⤴︎
  18. Tex. Gov’t Code § 411.209(g) (also, “court costs …, investigative costs, witness fees, and deposition costs”). ⤴︎
  19. Tex. Local Gov’t Code § 236.002. ⤴︎
  20. Tex. Local Gov’t Code § 235.023. ⤴︎
  21. Tex. Local Gov’t Code § 235.022. ⤴︎
  22. Tex. Local Gov’t Code § 291.010(c). ⤴︎
  23. Tex. Op. Att’y Gen. DM-364 (1995), 1995 Tex. AG LEXIS 94, *11. ⤴︎
  24. Tex. Op. Att’y Gen. DM-364 (1995), 1995 Tex. AG LEXIS 94, at *4-6. ⤴︎

Local Authority to Regulate Firearms in the District of Columbia

Home Rule

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 section 1-321; originally section 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.

Interpretation

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

Notes
  1. D.C. Code Ann. section 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 it goes into effect. §§ 1.206.01 et seq; see Bliley v. Kelly, 23 F.3d 507, 508 (Ct. App. D.C.Cir. 1994). ⤴︎
  2. D.C. Code Ann.§ 7-2501.01 et seq. ⤴︎
  3. D.C. Code Ann.§ 1-206.02(a)(9). ⤴︎
  4. McIntosh, 395 A.2d at 753. ⤴︎
  5. Id. ⤴︎
  6. McIntosh, 395 A.2d at 753. ⤴︎
  7. Maryland & District of Columbia Rifle and Pistol Ass’n, Inc., 442 F.2d at 130. ⤴︎

Local Authority to Regulate Firearms in Utah

Preemption Statutes

Utah Code section 76-10-500(2) states:

All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless 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 53-5a-102, adopted in 2004, 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.

(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.1

Exceptions

Section 10-8-47(1)(c) specifically grants city boards of commissioners and city councils the authority to “regulate and prevent the discharge of firearms…”

Sections 76-8-311.1 and 76-8-311.3 allow correctional, law enforcement, and mental health facilities to prohibit or control firearms and ammunition.

Interpretation

In the 2006 case Univ. of Utah v. Shurtleff,2, 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.3

Other Statutory Provisions

The Utah 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.”4 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.5

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Utah.

Notes
  1. (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. ⤴︎
  2. 144 P.3d 1109 (Utah 2006). ⤴︎
  3. Id. at 1121-22. ⤴︎
  4. Utah Code Ann. § 53B-3-103(2)(ii)(A). ⤴︎
  5. Utah Code Ann. § 53B-3-103(2)(ii)(B). ⤴︎

Local Authority to Regulate Firearms in Vermont

Preemption Statutes

Vermont Statutes Annotated Title 24, section 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.

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.1

Exceptions

Vermont Statutes Annotated Title. 24, section 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.”

Interpretation

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.2 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.”3 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.4 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.5

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.6 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.7 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.”8 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.9

Other Relevant Provisions

Under Vermont Statutes Annotated title 16, section 563(5), school boards have the power to regulate or prohibit firearms on school premises and must adopt and implement policies consistent with existing state law regarding students who bring firearms to or possess firearms at school.

Several Vermont cities have municipal charters that specifically grant city bodies the authority to regulate or prohibit the possession or use of firearms.10 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.11 The court explicitly stated that it did not need to decide whether section 2291 also authorized the ordinance.12

Immunity

For information on statutes that provide shooting ranges with immunity from lawsuits, see our page on Immunity Statutes in Vermont.

Notes
  1. Vt. Stat. Ann. tit. 24, § 131 et seq. ⤴︎
  2. 913 A.2d 391 (Vt. 2006). ⤴︎
  3. Id. at 397. ⤴︎
  4. Id. ⤴︎
  5. Id. at 398-99. ⤴︎
  6. 1997 Vt. AG LEXIS 1, Op. Vt. Att’y Gen. 97-2 (July 23, 1997). ⤴︎
  7. 1997 Vt. AG LEXIS 1, Op. Att’y Gen. 97-2 at *2. ⤴︎
  8. Id. ⤴︎
  9. Id. ⤴︎
  10. See, e.g., Vt. Stat. Ann. tit. 24A, §§ 19-304(b)(4) (City of Winooski). ⤴︎
  11. 689 A.2d 427, 429 (Vt. 1996). ⤴︎
  12. Id. ⤴︎

Local Authority to Regulate Firearms in Virginia

Home Rule

Virginia Code Annotated section 15.2-1200 states:

“[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.

Preemption Statutes

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

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.3 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.4

Exceptions

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 inhabitants.5
  • Counties may impose limited prohibitions on possession of a loaded firearm on public highways.6
  • 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 inhabitants.7
  • Cities and counties may prohibit the transportation, possession or carrying of loaded shotguns or rifles in any vehicle on any public street, road, or highway8
  • Municipalities may prohibit the discharge of firearms, and may require the maintenance of safety devices on storage equipment for firearms.9
  • 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.10

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.

For information about permissible ordinances governing pneumatic guns, see Non-Powder Guns in Virginia.

Interpretation

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 Stallings prompted the General Assembly’s adoption of the original section 15.2-915 (previously section 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.11
  • 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.

Other Relevant Provisions

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.

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.12

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Virginia.

Notes
  1. Va. Code Ann. § 15.2-915(C). ⤴︎
  2. Va. Code Ann. § 15.2-915(A). ⤴︎
  3. 2010 Va. ALS 495 (amending Va. Code Ann. § 15.2-1207). ⤴︎
  4. Id. (repealing former Va. Code Ann. § 15.2-1206). ⤴︎
  5. Va. Code Ann. § 15.2-1209. ⤴︎
  6. Va. Code Ann. § 15.2-1209.1. ⤴︎
  7. Va. Code Ann. §§ 15.2-1113.1 (municipalities), 15.2-1210 (counties). ⤴︎
  8. Va. Code Ann. § 15.2-915.2. ⤴︎
  9. Va. Code Ann. § 15.2-1113. ⤴︎
  10. Va. Code Ann. § 15.2-914. ⤴︎
  11. Op. Att’y Gen. Va. 29 (1994), 1994 Va. AG LEXIS 4, *6-*7. ⤴︎
  12. Va. Code Ann. § 15.2-915.5 ⤴︎

Local Authority to Regulate Firearms in Washington

Home Rule

Local regulatory authority is derived from Article XI, section 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

Preemption Statutes

The Washington Legislature, however, has limited the authority of local governments to regulate firearms. Washington Revised Code Ann. section 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.

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.

Exceptions

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.
  • 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
    • Any showing, demonstration, or lecture involving the exhibition of firearms.

Further, under section 9.41.300(3), cities, towns, and counties may:

  • Enact ordinances restricting the areas 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
  • 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.

Interpretation

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.2 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.3 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.”4 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.”5

Moreover, Washington courts have upheld local ordinances on the ground that they do not regulate firearms within the meaning of section 9.41.290. In Watson v. City of Seattle, the Washington Supreme Court upheld a city ordinance that imposed a tax on firearms and ammunition sales. The court held that section 9.41.290 does not apply to the taxation of firearm sales because taxation does not constitute a “regulation” of firearms.6 In addition, in Kitsap County v. Kitsap Rifle & Revolver Club, an appellate court upheld a county code provision requiring a permit to operate a firearms shooting facility, finding that the provision was not a firearm “regulation” within the meaning of section 9.41.290.7 The Kitsap court also found that the county requirement that a firearms shooting facility obtain a permit to operate was not preempted because it falls within the scope of the statutory exception to the preemption of local firearms regulation provided by section 9.41.300 allowing political subdivisions to regulate the discharge of firearms to protect humans and property.8

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, a Washington appellate court 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

Immunity

For state laws regarding lawsuits against the gun industry, see our page on Immunity Statutes in Washington.

Notes
  1. Wash. Const. Art. XI, § 11. ⤴︎
  2. Cherry v. Municipality of Metropolitan Seattle, 808 P.2d 746, 750 (Wash. 1991). ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. 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). ⤴︎
  6. 401 P.3d 1, 12-14 (Wash. 2017). ⤴︎
  7. 405 P.3d 1026, 1034 (Wash. 2017), appeal denied, Kitsap County v. Kitsap Rifle & Revolver Club, 415 P.3d 1198 Wash. 2018). ⤴︎
  8. Id. at 1034. ⤴︎
  9. 144 P.3d 276, 282-83 (Wash. 2006). ⤴︎
  10. Id. at 283. ⤴︎
  11. 164 Wash. App. 549, 562 (Wash. Ct. App. 2011). ⤴︎
  12. Chan, 164 Wash. App. at 565. ⤴︎
  13. Id. at 563. ⤴︎
  14. 856 P.2d 1113 (Wash. Ct. App. 1993. ⤴︎

Local Authority to Regulate Firearms in West Virginia

Preemption Statute

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

Exceptions

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.
  • Carry or possession of firearms on municipally owned property other than buildings and recreational facilities by individuals without concealed carry licenses2

These exceptions are 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.3
  • 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.4

Interpretation

As of the date this page was last updated, Giffords Law Center is not aware of any significant case law interpreting West Virginia’s preemption statute.

Other Statutory Provisions

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.5

Section 8-12-5a is not to be read to limit the authority of West Virginia municipalities the general power to enact and enforce ordinances to “arrest, convict and punish” individuals for illegally carrying or possessing handguns or to restrict the commercial use of real estate in designated areas through planning or zoning ordinances.6

County commissions, like municipalities, are denied authority to regulate the purchase, possession, transfer, ownership, carrying, transportation, sale or storage of firearms and ammunition.7 However, this provision does not prohibit local governments from regulating “the commercial use of real estate in designated areas through planning or zoning ordinances.”8

Immunity

See our page on Immunity Statutes in West Virginia for information regarding lawsuits by local governments against shooting ranges and the gun industry.

Notes
  1. W. Va. Code § 8-12-5a. ⤴︎
  2. W. Va. Code § 8-12-5a(c). ⤴︎
  3. W. Va. Code § 8-12-5a(e). ⤴︎
  4. W. Va. Code § 8-12-5a(c)(3). ⤴︎
  5. W. Va. Code § 8-12-5a(h)(2). ⤴︎
  6. W. Va. Code § 8-12-5a(h)(1) (3). ⤴︎
  7. W. Va. Code § 7-1-3. ⤴︎
  8. Id. ⤴︎

Local Authority to Regulate Firearms in Wisconsin

Preemption Statutes

Wisconsin limits the authority of local governments to regulate firearms. Wisconsin Statute section 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.

Exceptions

Notwithstanding the 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.78

Interpretation

In 2017 the Wisconsin Supreme Court in Wisconsin Carry, Inc. v. City of Madison held that section 66.0409 deprived the City of Madison, through its Transit and Parking Commission, the authority to prohibit the otherwise lawful carrying of weapons on buses it operates.9

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. 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.10

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.11 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, 1998.12 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.13

Other Statutory Provisions

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,14 if the sport shooting range is a lawful use or a legal nonconforming use under any zoning ordinance in effect on July 16, 2013.15 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.16

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 firearm17
  • 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 noise18

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.19

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.20

Immunity

See our page on Immunity Statutes in Wisconsin for information regarding lawsuits against shooting ranges.

Notes
  1. Wis. Stat. § 66.0409(1)(b). ⤴︎
  2. Wis. Stat. § 66.0409(3)(a). ⤴︎
  3. Wis. Stat. § 66.0409(3)(b). ⤴︎
  4. Id. ⤴︎
  5. Wis. Stat. § 66.0409(4)(a). ⤴︎
  6. Wis. Stat. § 66.0409(4)(b). ⤴︎
  7. Wis. Stat. § 66.0409(4)(c). ⤴︎
  8. 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.” ⤴︎
  9. 892 N.W.2d 233, 253(Wis. 2017). ⤴︎
  10. 253 Wis. 2d 647, 665 (2002). ⤴︎
  11. Id. at 658 ⤴︎
  12. Id. ⤴︎
  13. Id. ⤴︎
  14. 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). ⤴︎
  15. Wis. Stat. § 895.527(4). ⤴︎
  16. Id. ⤴︎
  17. Wis. Stat. § 66.0409(3)(b). ⤴︎
  18. Wis. Stat. § 895.527(5). ⤴︎
  19. Wis. Stat. § 895.527(6). ⤴︎
  20. Wis. Stat. § 66.0409(6). ⤴︎

Local Authority to Regulate Firearms in Wyoming

Preemption Statute

Wyoming Statutes section 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. … [N]o 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.

Wyoming Statutes section 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.

Exceptions

Wyoming provides for exceptions to its preemption statute:

  • Local governments can regulate “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.”1
  • Local governments can enforce zoning ordinances that encompass firearms businesses along with other businesses, as long as they are not designed to restrict the purchase or sale of firearms and ammunition.2
  • School Districts can adopt rules and regulations regarding concealed carry by employees with concealed carry permits.3

Interpretation

As of the date that this page was last updated, Giffords Law Center is not aware of any case law interpreting Wyoming Statute § 6-8-401(c).

Other Statutory Provisions

The governing bodies of all cities and towns may regulate, license, tax, or prohibit shooting galleries.4

Rules or regulations adopted by any state department or agency for limiting levels of noise in terms of decibel level that may occur in the outdoor atmosphere shall not apply to a sport shooting range exempted from liability under sections 16-11-101 through 16-11-103.5 While those provisions limit the civil liability and criminal prosecution of any person using or operating the range they do “not prohibit a local government from regulating the location and construction of a sport shooting range after [February 16, 1995].6

Immunity

See our page on Immunity Statutes in Wyoming for information regarding lawsuits against shooting ranges and the gun industry.

Notes
  1. Wyo. Stat. Ann. § 15-1-103(a)(xviii). ⤴︎
  2. Wyo. Stat. Ann. § 6-8-401(c). ⤴︎
  3. Wyo. Stat. Ann. § 21-3-132. ⤴︎
  4. Wyo. Stat. Ann. § 15-1-103(a)(xv). ⤴︎
  5. Wyo. Stat. Ann. § 16-11-102(c). ⤴︎
  6. Wyo. Stat. Ann. § 16-11-103. ⤴︎