State Local Authority

Last Updated August 17, 2010

In 1982, Alabama enacted a specific handgun-related preemption statute, Alabama Code § 11-45-1.1 which states:

No incorporated municipality shall have the power to enact any ordinance, rule, or regulation which shall tax, restrict, prevent, or in any way affect the possession or ownership of handguns by the citizens of this state. The entire subject matter of handguns is reserved to the State Legislature. This section shall not be construed to limit or restrict the power of a municipality to adopt ordinances which make the violation of a state handgun law a violation of a municipal ordinance to the same extent as other state law violations, or to limit or restrict the power of a municipal court to exercise concurrent jurisdiction with the district court over violations of state handgun laws which may be prosecuted as breaches of a municipal ordinance.

In Ex parte Childers, 640 So. 2d 16 (1994), the Supreme Court of Alabama found a municipal ordinance prohibiting the possession of all firearms, including handguns, on the premises of any business maintaining a “lounge retail liquor license” to be preempted by section 11-45-1.1 (despite the fact that § 11-45-1.1 relates only to handguns, and does not proscribe local regulation of other firearms).

Alabama Attorney General opinions have reinforced the total preemptive effect of section 11-45-1.1 on municipal handgun regulation. For example, the Attorney General has opined that under section 11-45-1.1, municipalities have no authority to enact any ordinance dealing with handguns.¹ The Attorney General has stated that while a municipality may not adopt a workplace violence prevention policy for its employees prohibiting employees from possessing handguns in the workplace, the municipality may adopt a policy prohibiting possession of any other type of weapon by employees.²

Section 11-80-11, enacted in 2000, also significantly affects the ability of municipalities and counties to regulate the sale, possession and use of all firearms, not only handguns. Section 11-80-11(a) states: “No county or municipal corporation, instrumentality, or political subdivision thereof, by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, registration or use of firearms, ammunition, components of firearms, firearms dealers, or dealers in firearm components.” Under Alabama law, a firearm is defined as “[a] weapon from which a shot is discharged by gunpowder.”³

By its terms, section 11-80-11 does not affect the authority of:

• A municipality to regulate the discharge of firearms within its boundaries;
• A county to regulate the discharge of firearms within its boundaries under a law enacted prior to August 1, 2000; or
• A county or municipality to assess, enforce and collect sales taxes, use taxes, and gross receipts taxes on the retail sale of firearms and ammunition, and to assess, enforce and collect business licenses from firearms or ammunition manufacturers, trade associations, distributors or dealers for the privilege of engaging in business.

Section 11-80-11(b)(2) also states:

[N]othing herein shall exempt any business which uses firearms or ammunition in the conduct of its business or any business which leases or sells firearms or ammunition from the provisions of county and municipal planning and zoning laws, as long as the code, ordinance, or regulations are not used to circumvent the intent of subsection (a).

This section shall not be construed to limit or restrict the power of a municipality to adopt or enforce ordinances which make the violation of a state firearm law a violation of a municipal ordinance to the same extent as other state law violations.

There are no cases interpreting section 11-80-11. However, the Attorney General has opined that even under sections 11-45-1.1 and 11-80-11 a city may still:

• Regulate the discharge of firearms other than handguns within its corporate limits;
• Adopt an ordinance making a violation of a state handgun law a violation of a municipal ordinance; and
• Regulate the times and places a firearm can be discharged for hunting and nonhunting purposes, provided the ordinance or regulation is not inconsistent with state laws and regulations.⁴

Section 6-5-341, pertaining to the regulation of sport shooting ranges, states that rules or regulations adopted by any governmental body (including any county or municipal governing body per § 6-5-341(a)(1)) limiting levels of noise in terms of decibel level or limiting levels of lead occurring in the atmosphere shall not apply to a sport shooting range exempted from liability under section 6-5-341.⁵ For further information, please see the Alabama Immunity Statutes section.

Finally, city and town councils have the power to revoke any license issued to a location where firearms are kept for sale when “the public safety, peace, good order or decency may require it” and when the owner or operator of the location has been convicted of any violation of city or town ordinances regulating such a business.⁶ A city or town has the power to authorize the mayor or other chief executive officer by proclamation to cause any or all houses or places of amusement or houses or places for the sale of firearms to be closed for a period not longer than the next meeting of the city or town council or other governing body.⁷

1. 1984 Ala. AG LEXIS 3, 197 Op. Att’y Gen. Ala. 26 (December 3, 1984), and 1987 Ala. AG LEXIS 2, 209 Op. Att’y Gen. Ala. 41 (December 18, 1987). [↩]
2. 2001 Ala. AG LEXIS 163, No. 2001-267 (August 28, 2001). [↩]
3. Ala. Code §§ 13A-8-1(4) and 13A-11-62(1). [↩]
4. 2005 Ala. AG LEXIS 94, No. 2005-127 (May 10, 2005). [↩]
5. Section 6-5-341(d), (e). [↩]
6. Section 11-51-103. [↩]
7. Section 11-51-102. [↩]

Last Updated January 13, 2012

Alaska has expressly preempted most local firearm regulation. Alaska Statutes § 29.35.145(a) provides:

The authority to regulate firearms 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.

Municipalities may, however, adopt ordinances that:

• Are identical to state law and that provide the same penalty as state law;
• Restrict the discharge of firearms where there is a reasonable likelihood that people, domestic animals, or property will be jeopardized;
• Restrict areas in which firearms may be sold, although businesses selling firearms may not be treated more restrictively than other businesses located within the same zone; and
• Prohibit the possession of firearms in the restricted access area of municipal government buildings (a “restricted access area” is the area beyond a secure point where visitors are screened and does not include common areas of ingress and egress open to the general public, per § 29.35.145(e)(2)).

Section 29.35.145(b).

In addition, the prohibition on taxation in section 29.35.145(a) does not include imposition of a sales tax that is levied on all products sold within a municipality. Section 29.35.145(c).
Alaska Statutes § 18.65.800(a) also restricts local gun regulation, providing that:

Notwithstanding any other provision of law…a municipality…may not adopt or enforce a law, ordinance, policy, or rule that prohibits or has the effect of prohibiting an individual from possessing a firearm while that individual is within a motor vehicle or prohibiting an individual from storing a firearm that is locked in the individual’s motor vehicle while the motor vehicle is otherwise legally parked in or on state or municipal property or another person’s property.

An employer or its agent may, however, prohibit firearm possession within a secured restricted access area (as defined in § 29.35.145(e)(2), see above), in a vehicle owned, leased, or rented by the employer or its agent, or in a parking lot owned or controlled by the employer within 300 feet of the secured restricted access area.¹

The state, a municipality, or a person is not liable for any injury or damage resulting from the storage of a firearm in the vehicle of another individual in accordance with section 18.65.800.²

In addition, section 18.65.778 provides that “[a] municipality may not restrict the carrying of a concealed handgun by permit” issued in accordance with Alaska law. Although Alaska has a comprehensive permitting scheme for the carrying of concealed handguns under sections 18.65.700 to 18.65.790, such permits are no longer required.

There are no cases interpreting the aforementioned statutes.

1. Section 18.65.800(d). [↩]
2. Section 18.65.800(c). [↩]

Last Updated June 28, 2010

Arizona Revised Statutes § 13-3108 provides in part:

A. Except as provided in subsection C of this section, a political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms or ammunition or any firearm or ammunition components or related accessories in this state.

B. A political subdivision of this state shall not require the licensing or registration of firearms or ammunition or any firearm or ammunition components or related accessories or prohibit the ownership, purchase, sale or transfer of firearms or ammunition or any firearm or ammunition components or related accessories.

In 2010, Arizona enacted two laws that add to this section. The first new law added a subsection that reads:

A political subdivision of this state shall not enact any rule or ordinance that relates to firearms and is more prohibitive than or that has a penalty that is greater than any state law penalty. A political subdivision’s rule or ordinance that relates to firearms and that is inconsistent with or more restrictive than state law, whether enacted before or after the effective date of the amendment to this section, is null and void.¹

That law also removed local authority to limit firearm possession in certain parks and preserves, and made clear that the state’s restrictions on local authority apply whether the political subdivision is acting pursuant to its police power, in a proprietary capacity, or otherwise.²

The second new law added a subsection that prohibits a political subdivision from requiring or maintaining a record in any form, whether permanent or temporary, including a list, log or database, of any of the following:

• 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 purchases, sells or transfers a firearm, unless the transaction involves a federally licensed firearms dealer; or

• The description, including the serial number, of a weapon that is left in temporary storage at any public establishment or public event.³

Nevertheless, section 13-3108 permits political subdivisions to enact and enforce firearms regulations that:

• Impose privilege and use taxes on the retail sale, lease or rental of, or the gross proceeds or gross income from the sale, lease or rental of, firearms or ammunition or their components at a rate that applies generally to other items of tangible personal property;

• Require that a minor who knowingly possesses or carries a firearm in any place that is in or open to the public or on any street or highway or on private property (except private property owned or leased by the minor or the minor’s parent, grandparent or guardian) to be accompanied by a parent, grandparent, guardian or certified hunter or firearms safety instructor acting with the consent of a parent, grandparent, or guardian. Any ordinance or rule adopted pursuant to this provision shall not apply to minors age 14 through 17 engaged in lawful hunting or shooting events, including transportation of an unloaded firearm for such purposes, and for activities related to agricultural work;

• Relate to the regulation of land and structures, including firearms or ammunition-related businesses or shooting ranges, in the same manner as other commercial businesses (but see § 17-602(A), which states that outdoor shooting range noise standards are a matter of statewide concern). This provision does not authorize a political subdivision to regulate the sale or transfer of firearms on property it owns, leases, operates or controls in a manner that is different than or inconsistent with state law. For the purposes of this provision, a use permit or other contract that provides for the use of property owned, leased, operated or controlled by a political subdivision shall not be considered a sale, conveyance or disposition of property;

• Regulate employees or independent contractors of the political subdivision who are acting within the course and scope of their employment or contract; or

• Limit or prohibit the discharge of firearms in parks and preserves. Narrow exceptions exist to this area of regulation, including the discharge of firearms on properly supervised ranges, in approved hunting areas, to control nuisance wildlife, if in possession of a special permit issued by the chief law enforcement officer of the political subdivision, if working as an animal control officer, or in self-defense or defense of another person against an animal attack if a reasonable person would believe that deadly physical force was necessary.

The Attorney General of Arizona has opined that state law would preempt an ordinance generally prohibiting the carrying of a firearm outside one’s own real property.⁴

In City of Tucson v. Rineer, 971 P.2d 207 (Ariz. Ct. App. 1998), superseded by statute, 2010 Ariz. ALS 19, the court rejected a section 13-3108(A) challenge to a Tucson ordinance that prohibits the use or possession of firearms within city parks. The court rejected the argument that the statute occupies the entire field of firearms regulation, stating that while the statute prohibits political subdivisions from enacting certain firearm-related ordinances, the statute “is specific in its prohibitions” and had the legislature intended that the statute preclude all local regulation of possessing or carrying weapons, it would have expressly said so.⁵ 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.⁶ Note that, in 2010, the Arizona Legislature removed local authority to limit firearm possession in certain parks and preserves.⁷

The court of appeals again rejected a section 13-3108 challenge to a local firearm-related regulation in McMann v. City of Tucson, 47 P.3d 672 (Ariz. Ct. App. 2002), superseded by statute, 2003 Ariz. ALS 162 § 1. In McMann, gun show promoters argued that section 13-3108 preempted a Tucson regulation requiring, as a condition of the promoter’s use permit, instant background checks for prospective gun purchasers at gun shows held at the Tucson Convention Center (TCC).⁸ The court held that the legislature did not clearly intend to preempt Tucson from requiring background checks on prospective firearms purchasers at events held at the TCC. Id. at 678.

Following the McMann case, the Legislature amended section 13-3108, which permits local jurisdictions to regulate the land and structures of firearms and ammunition-related businesses in the same manner as other commercial businesses. The following provision was added in 2003:

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.

Section 17-602(A) states that outdoor shooting range noise standards are a matter of statewide concern, and provides that city, town, county and any other state noise standards are preempted as applied to outdoor shooting ranges. Section 17-605(A) states that compliance with Arizona Revised Statutes Title 17, Chapter 6, Article 1 is an affirmative defense to any civil liability or claim for equitable relief arising from any allegation regarding noise or noise pollution from an outdoor shooting range.

Finally, Arizona Revised Statutes § 12-714(A) states that “[a] political subdivision of this state shall not commence a qualified civil liability action in any Arizona court” against a firearms manufacturer or seller. See the Arizona Immunity Statutes section for further information.

1. 2010 Ariz. ALS 19. [↩]
2. Id. [↩]
3. 2010 Ariz. ALS 327. [↩]
4. Op. Ariz. Att’y Gen. I78-274, 1978 Ariz. AG LEXIS 16 (Nov. 3, 1978). [↩]
5. Rineer, 971 P.2d at 210. [↩]
6. Rineer, 971 P.2d at 210. [↩]
7. 2010 Ariz. ALS 19. [↩]
8. McMann, 47 P.3d at 674. [↩]

Last Updated December 14, 2011

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

(A) A local unit of government shall not enact any ordinance or regulation pertaining to, or regulate in any other manner, the ownership, transfer, transportation, carrying, or possession of firearms, ammunition for firearms, or components of firearms, except as otherwise provided in state or federal law.

(B) This shall not prevent the enactment of an ordinance regulating or forbidding the unsafe discharge of a firearm.

A “local unit of government” is defined as “a city, town, or county.”¹

A county may also regulate the discharge of firearms at the request of the governing body of a suburban improvement district, per section 14-16-501, or a property owners’ association, per section 14-16-502.

There is no case law interpreting these statutes.

Finally, in regard to the local regulation of shooting ranges, section 14-1-101 requires that when a local government enacts an ordinance affecting an existing sports shooting range in the jurisdiction, the range must be allowed to continue operation even if it does not comply with the new ordinance. In addition, a local government may not prohibit a shooting range that was in existence on or before August 12, 2005, from performing certain repairs, remodeling, expanding or enhancing its membership, facilities or activities.

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see the Arkansas Immunity Statutes/Manufacturer Litigation section.

1. Sections 14-16-504(a), 14-54-1411. [↩]

Last Updated July 2, 2008

Article XI, § 7 of the California Constitution provides that “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Under this provision, a local government’s police power is as broad as the state Legislature’s power, and a city or county may act to protect the welfare of its residents.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

The California Legislature has expressly preempted the following areas of firearms law: 1) licensing or registration of commercially manufactured firearms⁸; 2) licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business⁹; and 3) regulation of the manufacture, sale or possession of “imitation firearms”¹⁰.

California Government Code § 53071 provides:

It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision as defined in section 1721 of the Labor Code.

California Penal Code § 12026(b) provides:

No permit or license to purchase, own, possess, keep, or carry…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 Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.

California Government Code § 53071.5 provides:

By the enforcement of this section, the Legislature occupies the whole field of regulation of the manufacture, sale, or possession of imitation firearms, as defined in section 12550 of the Penal Code, and that section shall preempt and be exclusive of all regulations relating to the manufacture, sale, or possession of imitation firearms, including regulations governing the manufacture, sale, or possession of BB devices and air rifles described in subdivision (g) of Section 12001 of the Penal Code.

In addition, California generally permits local regulation of sport shooting ranges, but provides that local jurisdictions may not enforce new or amended noise control laws on shooting ranges that are in operation and not in violation of existing law at the time of the enactment of the new or amended noise control ordinance, if there has been no substantial change in the nature or use of the range.¹¹

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. When courts have ruled that the field of firearms regulation or subfields of firearms regulation are not preempted, the Legislature has responded by choosing to preempt only a few subfields and not to preempt the entire field of firearms or other subfields of firearms regulation; courts have found that such a response indicates an intent not to preempt local regulation. Ultimately, the question to be resolved in an implied preemption analysis “is not whether a statute grants [a locality] a power, but whether a statute deprives [a locality] of a power already bestowed upon the [locality] by the Constitution.”¹⁴

Suter v. City of Lafayette, supra, involved a preemption challenge to an ordinance regulating the location and operation of firearms dealers. Gun sellers challenged the ordinance on state preemption grounds. The court of appeal dismissed the action, holding that local governments are not generally excluded by state law from imposing additional licensing requirements on firearm dealers. Suter, 67 Cal. Rptr. 2d at 422. The court found that, with one exception (it struck down the portion of the ordinance regulating firearm storage), the ordinance provisions did not conflict with, duplicate, or enter into a field fully occupied by state law and were not, therefore, preempted.¹⁵

In Doe v. City and County of San Francisco, 186 Cal. Rptr. 380 (Cal. Ct. App. 1982), the Court of Appeal of California held that Gov’t Code § 53071 and Penal Code § 12026 expressly preempted a local ordinance banning the possession of handguns. Because the ordinance contained an explicit exception for concealed weapons licensees, the court found that the measure had the effect of creating a new class of persons who would be required to obtain a license in order to possess a handgun in their home or place of business.¹⁶ The court also stated that:

If we were to find in the San Francisco Handgun Ordinance no “licensing” requirement within the express wording of Government Code section 53071 and Penal Code section 12026, 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 that the Legislature intended to occupy the field of residential handgun possession to the exclusion of local governmental entities. A restriction on requiring permits and licenses necessarily implies that possession is lawful without a permit or license.¹⁷

Cases subsequent to Doe demonstrate that section 12026 should be read narrowly.¹⁸

The Supreme Court of California reaffirmed the authority of local governments to regulate firearms – this time in the context of gun shows – in two related cases: Great Western Shows, Inc. v. County of Los Angeles, 44 P.3d 120 (Cal. 2002) and Nordyke v. King, 44 P.3d 133 (Cal. 2002). Great Western involved a challenge to a Los Angeles County ordinance prohibiting the sale of firearms and ammunition on county-owned property. The County adopted the ordinance after a California Department of Justice undercover operation revealed numerous illegal firearm sales at a gun show held on the county fairgrounds. Legislative findings accompanying the ordinance also recited the high incidence of gun-related deaths and injuries in the County.

Great Western Shows, Inc., a gun show promoter, filed suit in the United States District Court for the Central District of California, alleging, among other things, that the ordinance was preempted by state law and violated the First Amendment. The district court granted a preliminary injunction, holding that the complaint raised substantial questions regarding whether state law preempted the ordinance. The County filed an interlocutory appeal in the U.S. Court of Appeals for the Ninth Circuit, which then certified to the state supreme court questions relating to preemption and jurisdiction.

The supreme court upheld the ordinance, rejecting plaintiff’s claim that state law has preempted the field of gun show regulation. The court observed that there is no express preemption in this area, noting that, on the contrary, Penal Code sections 12071 (concerning the licensing of firearm dealers) and 12071.4 (regulating gun shows) explicitly acknowledge the existence of local laws pertaining to gun shows. The court found the ordinance not duplicative of or in conflict with state law, stating that although gun show statutes regulate, inter alia, the sale of guns at gun shows and therefore contemplate gun shows, the statutes do not mandate sales such that a limitation of sales on county property would be in direct conflict with the statutes.¹⁹

The court refused to find implied preemption under the three “indicia of intent” detailed in Sherwin-Williams Co., supra, finding first that state law does not clearly indicate that gun show regulation has become exclusively a matter of state concern. The court declined to find a “paramount state concern” that will not tolerate further local action, noting judicial reluctance to find such a concern where there is a significant local interest to be served that may differ from one community to another: “It is true today as it was more than 30 years ago when we stated it in Galvan, ‘[t]hat problems with firearms are likely to require different treatment in San Francisco County than in Mono County.’ (Galvan, supra, 70 Cal. 2d at p. 864.)” Thus, the court found, the costs and benefits of making firearms more available through gun shows to the populace of a heavily urban county such as Los Angeles may well be different than in rural counties, where violent gun-related crime may not be as prevalent.²⁰

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.”²¹

In addition, the court rejected Great Western’s claim that, while state law may permit local gun show regulations, it would not tolerate a regulation that would have the effect of banning of such shows. The court found nothing in state law to indicate a stated purpose of promoting or encouraging gun shows; rather, state law merely acknowledges that such shows take place and regulates them to promote public safety. The court noted further that the ordinance does not affect gun shows countywide, but only disallows gun sales on county-owned property. The court found that none of the gun show statutes impliedly seek to override a county’s ability to manage its property and make fundamental decisions regarding its use:

Aside from First Amendment public forum considerations or special statutory requirements not before us, the County is not compelled to grant access to its property to all comers. Nor do the gun show statutes mandate that counties use their property for such shows. If the County does allow such shows, it may impose more stringent restrictions on the sale of firearms than state law prescribes.²²

The Supreme Court of California issued a similar ruling in Nordyke v. King, 44 P.3d 133 (Cal. 2002), rejecting a challenge to an Alameda County ordinance prohibiting the possession of firearms and ammunition on county-owned property. The County had adopted the ordinance after a mass shooting at the county fairgrounds on July 4, 1998, and recited the epidemic of gunshot fatalities and injuries in the County as additional justification for the ordinance.

Nordyke was filed by gun show promoters in the United States District Court for the Northern District of California. Plaintiffs sought to enjoin enforcement of the ordinance, arguing that it was preempted by state law and violated the First Amendment. The district court rejected these arguments and plaintiffs filed an interlocutory appeal in the Ninth Circuit. As in the Great Western case, the Ninth Circuit certified to the Supreme Court of California the question of whether state law preempted the ordinance.

Incorporating its analysis and holding in Great Western, the supreme court found that state law does not preempt the Alameda County ordinance. The court held that the ordinance does not duplicate or contradict state law governing the possession of firearms, including Penal Code section 171b, which exempts from its prohibition on gun possession in public buildings persons who lawfully possess firearms at gun shows:

The 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.²³

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.”²⁴ In addition, the court held that even if the ordinance were partially preempted, it would not be invalidated as a whole.

Most recently, in Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895 (Cal. Ct. App. 2008), the Court of Appeal of California, First Appellate District (the same court that decided the Doe case), considered whether Proposition H, a municipal ordinance prohibiting the sale, distribution, transfer and manufacture of all firearms and ammunition in San Francisco and banning possession of handguns by San Francisco residents, was preempted by state law. The court held that Penal Code section 12026(b) and Government Code section 53071 preempted the ban on handgun possession. The court also found that section 53071 and Penal Code sections 12026(b) and 12125 – 12133 (the state Unsafe Handgun Act) preempted the transfer and manufacture prohibitions. The California Supreme Court declined to review the case.

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 § 12026 [↩]
10. Cal Gov’t Code § 53071.5 [↩]
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. Id. at 602. See also Id. at 598-601 (Legislature’s history of selective and narrow preemption in response to courts holding that the Legislature had not preempted local firearms regulations indicated that the Legislature had expressly avoided preemption). [↩]
15. Id. [↩]
16. Id. at 384. [↩]
17. Id. at 385 (citation omitted). [↩]
18. See City of West Hollywood, 78 Cal. Rptr. 2d at 605 (rejecting argument that section 12026 creates a broad right to purchase or possess any handgun not specifically prohibited by state law). [↩]
19. Great Western, 44 P.3d at 128. [↩]
20. Great Western, 44 P.3d at 128-129. [↩]
21. Great Western, 44 P.3d at 129. See Galvan, 452 P.2d at 939. [↩]
22. Great Western, 44 P.3d at 130-131. [↩]
23. Nordyke, 44 P.3d at 138. [↩]
24. Id. [↩]

Last Updated October 25, 2010

Article XX, § 6 of the Colorado Constitution, entitled “[h]ome rule for cities and towns” provides, in part, that:

The people of each city or town of this state, having a population of two thousand inhabitants as determined by the last preceding census taken under the authority of the United States, the state of Colorado or said city or town, are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters.

Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.

Article XX, § 6 is designed to “grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters.”

In determining the respective authority of the state legislature and home rule municipalities, the Supreme Court of Colorado has recognized three broad categories of regulatory matters: local concern, state concern, or mixed local and state concern.¹ In matters of local concern, both home rule cities and the state may legislate, but when a home rule ordinance or charter provision and a state statute conflict, the home rule provision supersedes the conflicting state provision.² In matters of statewide concern, the General Assembly may adopt legislation and preempt the power of home rule municipalities to enact conflicting legislation. Finally, in matters of mixed local and state concern, a home rule municipality’s charter or ordinance provision may coexist with a state statute so long as there is no conflict. In the event of a conflict, the state statute supersedes the charter or ordinance.³

Although the three categories are not “mutually exclusive or factually perfect, several general factors are useful under a totality of circumstances test to determine whether an issue is one of state, local, or mixed local and state concern, including the need for statewide uniformity of regulation, extraterritorial impact, other state interests, and local interests.”⁴

Colorado has also adopted several preemption statutes related to firearms. Colorado Revised Statutes § 29-11.7-103 provides:

A local government may not enact an ordinance, regulation, or other law that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law. Any such ordinance, regulation, or other law enacted by a local government prior to March 18, 2003, is void and unenforceable.

Colorado Revised Statutes § 29-11.7-101(2) refers to the regulation of firearms as a matter of “statewide concern” and declares a need for statewide uniformity of regulation in the area of firearms. That statute also declares that inconsistency among local jurisdictions has an extraterritorial impact on state citizens and the general public.⁵

Moreover, section 18-12-105.6(2) provides that:

[n]o municipality, county, or city and county shall have the authority to enact or enforce any ordinance or resolution that would restrict a person’s ability to travel with a weapon in a private automobile…while traveling into, through, or within, a municipal, county, or city and county jurisdiction….

The state concealed weapons act provides in its legislative findings that “[i]t is necessary that the state occupy the field of regulation of the bearing of concealed handguns.”⁶ Local governments may still enact regulations prohibiting the open carrying of firearms in a building or specific area within the local government’s jurisdiction, as long as the local government posts signs to that effect.⁷

Subsequent to these enactments, the City and County of Denver (“City”) sued the state seeking declaratory and injunctive relief regarding Denver ordinances that, among other provisions: 1) regulated the open carrying of firearms; 2) banned assault weapons and Saturday night specials; and 3) restricted the open carrying of firearms in city parks.⁸

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

In making its ruling, the court determined on a case-by-case basis whether each ordinance at issue addressed a matter of local concern, statewide concern, or mixed local and statewide concern. The court determined that Denver’s ordinances regulating the open carrying of firearms, assault weapons and Saturday night specials, and the open carrying of firearms in city parks involve matters of local concern and enjoined the state from enforcing its preemption laws against the City in these areas.⁹

The court held that ordinances and portions of ordinances addressing juvenile possession of firearms, carrying concealed firearms with a permit in a public park, and concealed weapon permitting, involved matters of mixed local and state concern (the City conceded the point as to concealed weapon permitting) and were invalid where they conflicted with state law.¹⁰

In determining that the ordinances addressing the open carrying of firearms, assault weapons, Saturday night specials, and the open carrying of firearm in city parks were matters of local concern, the court noted the unique characteristics that differentiate Denver from other parts of the state, such as high population density and a high crime rate, stating that these characteristics outweigh the need for statewide uniformity in these areas. The court quoted a statement made by the Assistant City Attorney at oral argument, “Simply put, a bullet fired in Denver – whether maliciously by a criminal or negligently by a law-abiding citizen – is more likely to hit something or somebody than a bullet fired in rural Colorado.”¹¹

An analogous lawsuit was filed against Denver by the Aurora Gun Club seeking to invalidate the same Denver ordinances, with a similar outcome.¹²

The Supreme Court of Colorado considered the appeal of these two cases in early 2006. On June 5, 2006, in an unusual 3-3 court deadlock, the aforementioned lower-court decisions were allowed to stand. Thus, Denver may now enforce its ordinances regulating the open carrying of firearms generally and in city parks, and banning assault weapons and Saturday night specials. The split provided no clear ruling on the preemption issues involved with these firearm ordinances.

Colorado provides that a local government, including a law enforcement agency, shall not maintain a list or other form of record or database of:

(a) Persons who purchase or exchange firearms or who leave firearms for repair or sale on consignment;

(b) Persons who transfer firearms, unless the persons are federally licensed firearms dealers;

(c) The descriptions, including serial numbers, of firearms purchased, transferred, exchanged, or left for repair or sale on consignment.¹³

Finally, state law prohibits local governments from enacting noise regulations concerning shooting ranges.¹⁴ Counties may regulate the discharge of firearms in areas with an average population of at least 100 persons per square mile.¹⁵

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. Id. [↩]
6. Section 18-12-201(1)(e). [↩]
7. Section 29-11.7-104. [↩]
8. City and County of Denver v. State, No. 03-CV-3809 (Colo. Dist. Ct. Nov. 5, 2004). [↩]
9. Id. [↩]
10. Id. [↩]
11. Id. [↩]
12. Aurora Gun Club v. City and County of Denver, No. 03-CV-8609 (Colo. Dist. Ct. 2004). [↩]
13. Colorado Revised Statutes § 29-11.7-102(1). [↩]
14. See section 25-12-109(1). [↩]
15. Section 30-15-302. [↩]

Last Updated April 19, 2011

Connecticut has not expressly preempted local laws in the area of firearms regulation. Connecticut courts also have not found that the legislature has demonstrated an intent to occupy the field of firearms and ammunition regulation. Absent a direct conflict with state law, broad local firearms and ammunition regulation appears possible.

In Dwyer v. Farrell, 475 A.2d 257 (Conn. 1984), the Supreme Court of Connecticut considered whether Connecticut General Statutes § 29-28, which authorizes persons to sell handguns at retail if issued a state permit, preempted a New Haven ordinance that placed further restrictions on persons seeking to sell handguns. The court acknowledged that the existence of a state law does not necessarily preempt a local government from regulating the same subject matter as long as such regulation is consistent with state law.¹ The court stated that to determine whether a local ordinance conflicts with state law, the court must review the purpose behind the state law and measure the degree to which the ordinance frustrates achievement of that purpose.² The court found that the New Haven ordinance frustrated the purpose of section 29-28 by prohibiting an entire class of persons from selling handguns that the state would have allowed.³ The court found that this created an irreconcilable conflict between New Haven’s ordinance and the statute, which rendered the ordinance preempted.⁴

See also Kaluszka v. Town of E. Hartford, 760 A.2d 1282 (Conn. Super. Ct. 1999) (finding that a municipal ordinance regulating the discharge of firearms had the effect of regulating hunting, which was preempted by the state’s extensive hunting laws).

The supreme court discussed the general principles governing preemption more recently in Modern Cigarette, Inc. v. Town of Orange, 774 A.2d 969 (Conn. 2001). In Modern Cigarette, the court considered whether state licensing and regulatory standards for cigarette vending machines preempted an ordinance adopted by the Town of Orange to prohibit such machines entirely.⁵ The court reiterated the basic standards outlined in Dwyer and upheld the ordinance, reasoning that state law did not expressly authorize cigarette vending machines, but instead imposed a series of limitations or prohibitions on their use that allowed for additional local regulation, including an outright prohibition.⁶ The court also noted that public safety ordinances are given a presumption of validity.⁷

Connecticut General Statutes § 22a-74a(b) states that a municipality’s noise control ordinance that limits noise in terms of decibel level in the outdoor atmosphere shall not apply to any firing or shooting range operating on October 1, 1998, if the standards set forth in the ordinance are inconsistent with Connecticut General Statutes Chapter 442 or regulations adopted under this Chapter. However, section 22a-74a does not limit the ability of a municipality to regulate an increase in noise attributable to a physical expansion of an existing firing or shooting range.⁸

1. Dwyer, 475 A.2d at 260. [↩]
2. Id. [↩]
3. Dwyer, 475 A.2d at 261. [↩]
4. Id. [↩]
5. Id. at 970-76. [↩]
6. Id. at 983-84. [↩]
7. Id. at 977. [↩]
8. Section 22a-74a(c). [↩]

Last Updated January 18, 2011

Delaware Code Annotated Title 22, § 111 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.

“Municipal governments” include all cities, towns and villages created under any general or special law for general governmental purposes, which possess legislative, administrative and police powers for the general exercise of municipal functions and which carry on such functions through a set of officials, and all unincorporated towns.¹

The “justification defenses as found in [title 11, §§ 461-471]” include such defenses to criminal liability as the use of force for self-protection, the protection of other persons, and the protection of property.

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

Prohibit, restrict or license ownership, transfer, possession or transportation of firearms or components of firearms or ammunition, except that the discharge of a firearm may be regulated; provided that any regulation or ordinance incorporates the justification defenses as found in [title 11 of the Delaware Code]. Nothing contained herein shall be construed to invalidate existing municipal ordinances.

County governments are likewise restricted from enacting any “law or regulation prohibiting, restricting or licensing the ownership, transfer, possession or transportation of firearms or components of firearms or ammunition” with an exception for discharge bans that incorporate the justification defenses as found in [tit. 11, §§ 461-471].²

There is little case law interpreting title 22, § 111, title 22, § 835(a)(6) and title 9, § 330(c).³

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

1. Del. Code Ann. tit. 22, Chapter 1. [↩]
2. Del. Code Ann. tit. 9, § 330(c). [↩]
3. See, e.g., Sills v. Smith & Wesson Corp., No.: 99C-09-283-FSS, 2000 Del. Super. LEXIS 444 ((Del. Super. Ct. Dec. 1, 2000) (rejecting, in part, a motion to dismiss Wilmington, Delaware’s suit for damages caused by handguns against several firearms manufacturers and trade associations). [↩]
4. Del. Code Ann. tit. 10, § 8142(d). [↩]

Last Updated September 2, 2010

The District of Columbia has broad authority to regulate firearms. The District derives legislative powers from the Home Rule Act¹, enacted in 1973. Section 1-303.43 incorporates an earlier grant of power (formerly § 1-321; originally § 1-227, enacted in 1906) authorizing the District Council to make and enforce laws regulating firearms and ammunition. The statute provides that:

The Council of the District of Columbia is hereby authorized and empowered to make, and the Mayor of the District of Columbia is hereby authorized and empowered to enforce, all such usual and reasonable police regulations…as the Council may deem necessary for the regulation of firearms, projectiles, explosives, or weapons of any kind in the District of Columbia.

In McIntosh v. Washington, 395 A.2d 744 (D.C. 1978), the District of Columbia Court of Appeals rejected a challenge to the District’s Firearms Control Regulations Act of 1975², relating to the use and sale of firearms. Appellants argued that the City Council was without authority to adopt the Act because the legislative history of section 1-147(a)(9)³) of the Home Rule Act, requiring elected Council members to wait 24 months after taking office before enacting certain legislation, demonstrated Congress’ intent to prohibit the District from adopting a comprehensive criminal regulatory scheme. The court rejected this argument, holding that the statute does not limit the District’s authority to enact firearms regulations that do not conflict with existing Congressional regulation for the District.⁴

The court noted that the federal Gun Control Act of 1968 explicitly provides that Congress has no intent to occupy the field of gun regulation to the exclusion of state law touching on the same subject matter “unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together. [Emphasis added.]”⁵ Finding no “direct and positive” conflict between the District’s gun control regulations and the Home Rule Act, the court stated:

[A] parallel enactment in a given area cannot be stricken simply because it expands the scope of restrictions imposed by a parent legislative body. The Firearms Act, much like the predecessor gun control regulations upheld in Pistol Ass’n, fits within the general pattern of antecedent congressional enactments.⁶

In Maryland & District of Columbia Rifle and Pistol Ass’n, Inc. v. Washington, 442 F.2d 123 (D.C. Cir. 1971), a case decided before enactment of the Home Rule Act, the U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the District’s local police firearm regulations (D.C. Pol. Reg. Arts. 50-55, subsequently repealed and replaced by D.C. Code Ann. § 7-2501.01 et seq.). The court held that the enactment of firearm legislation for the District by the U.S. Congress did not preempt the District Council’s right to adopt additional firearms regulations pursuant to an act of 1906 authorizing the Council to make and enforce all regulations deemed necessary for the regulation of firearms. The court concluded that the existence of both Congressional and District regulation on the same subject matter was not problematic, as long as the two regulatory schemes did not conflict. The court stated:

The important consideration, we think, is not whether the legislature and municipality have both entered the same field, but whether in doing so they have clashed. Statutory and local regulation may coexist in identical areas although the latter, not inconsistently with the former, exacts additional requirements, or imposes additional penalties.⁷

In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the U.S. Supreme Court found that the District’s decades-old ban on handgun possession and its requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device were unconstitutional violations of the Second Amendment. In Heller, the Court held that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense, and struck down the handgun possession ban as well as the safe storage law (which had no exception for self-defense). The District must now take into consideration this right under the Amendment when adopting firearm-related laws. For more information on the Heller case, see LCPGV’s materials on the Second Amendment.

1. D.C. Code Ann. § 1-201.01 et seq. [↩]
2. § 7-2501.01 et seq. [↩]
3. § 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. [↩]

Last Updated June 10, 2010

Florida has enacted a broad preemption statute concerning firearm regulations, under Florida Statutes Annotated § 790.33(1), which states:

Except as expressly provided by 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, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. This subsection shall not affect zoning ordinances which encompass firearms businesses along with other businesses. Zoning ordinances which are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited.

Fla. Stat. §§ 125.0107 and 166.044 also prohibit counties and municipalities, respectively, from adopting any ordinance relating to the possession or sale of ammunition.

In Penelas v. Arms Technology, Inc., 778 So.2d 1042 (Fla. Dist. Ct. App. 2001), Miami-Dade County sued firearms manufacturers alleging, inter alia, that the manufacturers’ products were defective, ultra hazardous, and created a public nuisance, seeking damages and injunctive relief. The Court of Appeal of Florida dismissed the County’s claims, holding that section 790.33 “expressly preempts to the state legislature the entire field of firearm and ammunition regulation” and stating that local governments cannot use the judiciary to attempt “to ‘enact’ regulatory measures in the guise of injunctive relief.”¹

In National Rifle Ass’n of Am., Inc. v. City of South Miami, 812 So.2d 504, 505-06 (Fla. Dist. Ct. App. 2002), the Court of Appeal of Florida found that an ordinance requiring the use of locking devices on firearms stored within the City (South Miami, Fla. Code § 14-00-1716) was “null and void” due to a conflict with section 790.33, stating that the “legislature…has…expressly preempted the entire field of firearm and ammunition regulation.” The court also rejected an opinion by the Florida Attorney General², opining that a locking device ordinance would not be preempted by section 790.33 because the statute does not mention firearm storage and the ordinance would not interfere with the “right to bear arms.”

The Attorney General of Florida has concluded that counties are prevented by section 790.33 from enacting ordinances that prohibit the discharge of firearms “in proximity to persons or property,” even when the ordinance is adopted for public health and safety purposes.³

Section 790.33 does not, however, prevent employers from regulating their employees’ use or possession of firearms while on the job. (Note, however, that in 2008, Florida adopted a law stating that employers may not prohibit an employee from possessing a legally owned firearm or ammunition locked inside or locked to a private motor vehicle in a parking lot. See the Florida Guns in Vehicles section for further information.) In Pelt v. Florida Dept. of Transportation, 664 So.2d 320, 321 (Fla. Dist. Ct. App. 1995), the court of appeal rejected a section 790.33 challenge to an employee’s suspension for carrying a licensed weapon on the job and firing it on break in violation of company policy. In upholding the employee’s five-day suspension, the court noted that section 790.33 was directed toward local government’s regulation of the conduct of its own citizens and found that “sound policy reasons” exist to allow employers to regulate their employees’ use and possession of firearms.

Enacted in 1988, section 790.33(2) provides, as a limited exception to Florida’s local preemption law, that any county may adopt an ordinance requiring a waiting period of up to, but not exceeding, three working days between the purchase and delivery of any retail sale of a handgun, excluding gun collector shows or exhibits, and gun shows. Section 790.33(2) appears to have been superseded by a 1990 amendment to the Florida Constitution which mandates a three-day waiting period.⁴

In 1998, Florida voters, by referendum, further amended Article VIII, § 5 of the Florida Constitution to allow counties to require, by ordinance, a three to five-day waiting period, excluding weekends and legal holidays, and criminal history records checks on all firearms sales occurring within the county.

Concealed weapons permit holders are not subject to any of these background check or waiting period provisions.⁵

Florida prohibits any legal actions against a firearms or ammunition manufacturer, distributor or dealer, or firearms trade association, on behalf of a county, municipality, special district, or any other political subdivision or agency of the state, for damages, abatement, or injunctive relief resulting from or arising out of the lawful design, marketing, distribution, or sale of firearms or ammunition to the public.⁶ Moreover, a county, municipality, special district, or other political subdivision or agency of the state may not sue for or recover from a firearms or ammunition manufacturer, distributor or dealer, or firearms trade association, damages, abatement, or injunctive relief in any case that arises out of or results from the lawful design, marketing, distribution, or sale of firearms or ammunition to the public.⁷

Actions against a firearms or ammunition manufacturer, distributor, or dealer are permitted for:

• Breach of contract or warranty in connection with a firearm or ammunition purchased by a county, municipality, special district, or other political subdivision or agency of the state; or
• Injuries resulting from the malfunction of a firearm or ammunition due to a defect in design or manufacture.⁸

Section 870.043 authorizes certain public officials, including county sheriffs and certain designated city officials, to declare a state of emergency if certain conditions are met. During a declared state of emergency, the following acts are prohibited:

• The sale of, or offer to sell, a firearm or ammunition;
• The intentional display of a firearm or ammunition by or in any store or shop; and
• The intentional possession of a firearm in a public place.

However, nothing in sections 870.01-870.06 may be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in a criminal act.

Similarly, section 252.36, which enumerates the powers of the Governor to address emergencies, states that he or she may “suspend or limit the sale, dispensing, or transportation of … firearms, explosives, and combustibles. However, nothing contained in sections 252.31-252.90 may be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in the commission of a criminal act.”

The Florida Legislature has 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.⁹ Florida law provides that any sport shooting or training range shall be immune from lawsuits brought by political subdivisions for any claims associated with the use, release, placement, deposition, or accumulation of any projectile on or under that range, or any other property over which the range has a legal right of use, if the range owner or operator has made a good faith effort to comply with the appropriate environmental management practices.¹⁰ Nothing in this law is intended to impair or diminish the private property rights of owners of property adjoining a sport shooting or training range.¹¹ The Attorney General of Florida has interpreted these provisions to mean that a county may enforce existing zoning and land use regulations against a proposed sports shooting range; however, no newly created or amended zoning or land use regulations may be enforced against existing ranges.¹²

A separate Florida law immunizes any person who operates or uses a sport shooting range from civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from operation or use of the range.¹³

Charter counties in Florida may also preempt city ordinances related to firearms in certain circumstances.¹⁴

1. Penelas, 778 So.2d at 1045. [↩]
2. Op. Att’y Gen. 2000-42 (July 11, 2000 [↩]
3. Op. Att’y Gen. Fla. 2005-40, 2005 Fla. AG LEXIS 46. [↩]
4. See also section 790.0655 which provides that a violation of the waiting period amendment is a felony. [↩]
5. Article VIII, § 5(b); Fla. Stat. § 790.33(2)(d). [↩]
6. Section 790.331(2). [↩]
7. Section 790.331(3). [↩]
8. Section 790.331(4). [↩]
9. Section 790.333(8). [↩]
10. Section 790.333(5)(a); see also section 790.333(4). [↩]
11. Section 790.333(5)(b). [↩]
12. Op. Att’y Gen. Fla. 2008-34, 2008 Fla. AG LEXIS 61. [↩]
13. Section 823.16. [↩]
14. See Broward County v. Ft. Lauderdale, 480 So. 2d 631 (Fla. 1985) (holding that a charter county may preempt city regulations regarding handgun sales). [↩]