Under the Supremacy Clause of Article VI of the U.S. Constitution, a federal law is binding on all state and local governments so long as Congress duly enacted the law pursuant to one of its limited powers. When federal law removes state authority (and thus local authority) to regulate a specific subject matter, the process is called “federal preemption.” Federal preemption of state law is uncommon in the area of firearms regulation.

Congress may make its intention to preempt an area of state law clear by expressly stating that intent in the language of a statute. Absent such a statement, when considering a challenge to a state or local law based on the claim that regulation of the subject has been preempted by Congress, courts presume that the federal government does not intend to preempt state and local authority.1 When the challenged law is within an area of traditional state authority, the reviewing court will find preemption only when the court is “absolutely certain” that Congress intended to take away that authority.2 Courts look for the existence of a pervasive scheme of federal legislation of the particular subject, or an irreconcilable conflict between the federal regulation and the challenged law, to determine congressional intent.3

Congress has not expressly preempted the broad field of firearms or ammunition regulation. Furthermore, courts have held that congressional regulation of firearms does not create a scheme so pervasive that it leaves no room for state and local law. Id. Thus, absent a specific, irreconcilable conflict between a challenged state or local firearms or ammunition law and a federal enactment, there is no federal preemption of that state or local law.

Furthermore, 18 U.S.C. § 927 states:

No provision of this chapter [18 U.S.C. § 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any state 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.

However, 18 U.S.C. § 926A limits the ability of state and local governments to regulate the transportation of firearms. In particular, that provision requires that a person be allowed to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm, to any other place where he may lawfully possess and carry such firearm, if the following conditions are met:

  • The person is not prohibited by federal law from shipping, transporting, or receiving a firearm;
  • The firearm is unloaded during the transportation;
  • Neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle; and
  • If the vehicle does not have a compartment separate from the driver’s compartment the firearm or ammunition is contained in a locked container other than the glove compartment or console.4

In Arnold v. Cleveland,5 an Ohio Court of Appeals held that an ordinance banning the transportation of assault weapons directly conflicted with section 926A and was therefore unconstitutional as a violation of the Supremacy Clause. Similarly, in Bieder v. United States,6 the court reversed defendant’s conviction for transporting an unregistered handgun into D.C. on the grounds that the defendant was complying with all the conditions of section 926A.

However, in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp,7 a federal district court rejected an argument that California’s prohibition on the transportation of assault weapons violated section 926A. The court reasoned that:

18 U.S.C. § 926A has two important qualifications; (1) the person transporting the weapon must be entitled, by law, to possess the weapon in the place from which he is transporting it; and (2) be legally entitled to possess it in the place to which it is being transported.

The court also pointed out that section 926A must be read in light of section 927.

In Coalition of New Jersey Sportsmen v. Florio,8 the court refused to issue a preliminary injunction against New Jersey’s ban on the transport of high caliber firearms and assault weapons, despite the plaintiffs’ argument that section 926A preempted the ban, holding that the elements necessary for issuance of a preliminary injunction were not met.

In Bach v. Pataki,9 the Second Circuit Court of Appeals mentioned that section 926A entitles an out-of-state resident to transport a firearm through New York as long as the provision’s conditions are met, even if the out-of-state resident does not have the proper license under New York law. For this reason, the court rejected an out-of-state resident’s argument that New York’s law violated the Privileges and Immunities Clause, even though New York’s law prohibited an out-of-state resident from obtaining a license.

Most recently, in Torraco v. Port Authority of New York & New Jersey,10 the court held that law enforcement officers are entitled to stop and question a person seeking to transport a firearm between states via airplane to ascertain whether the person meets the conditions in section 926A.

Federal law also limits the ability of state and local governments to regulate law enforcement officers and retired law enforcement officers carrying concealed weapons.11 For more information about law enforcement officers and retired law enforcement officers carrying concealed weapons, see Federal Law on Concealed Weapons Permitting.

For information about the Protection of Lawful Commerce in Arms Act (PLCAA), the federal law which partially immunizes manufacturers and sellers of firearms and ammunition from civil liability under federal, state, or local tort law, see Federal Law on Immunity Statutes.

See our Local Authority to Regulate Firearms policy summary for additional information about preemption, including state preemption of local laws.

Notes
  1. Richmond Boro Gun Club, Inc. v. City of New York, 896 F. Supp. 276, 285 (E.D.N.Y. 1995), aff’d, 97 F.3d 681 (2d Cir. 1996) (upholding New York City’s assault weapon ban against a federal preemption challenge). ⤴︎
  2. Gregory v. Ashcroft, 501 U.S. 452, 464 (1991) (rejecting a federal preemption challenge to a Missouri law setting mandatory retirement age for state judges). ⤴︎
  3. Richmond Boro Gun Club, Inc., 896 F. Supp. at 285. ⤴︎
  4. 18 U.S.C. § 926A. ⤴︎
  5. 1991 Ohio App. LEXIS 5246, No. 59260, (Ohio Ct. App. October 31, 1991). ⤴︎
  6. 662 A.2d 185 (D.C. Ct. App. 1995). ⤴︎
  7. 746 F. Supp. 1415 (E.D. Cal. 1990). ⤴︎
  8. 744 F. Supp. 602 (D. N.J. 1990). ⤴︎
  9. 408 F.3d 75 (2d Cir. 2005). ⤴︎
  10. 539 F. Supp. 2d 632 (E.D.N.Y. 2008). ⤴︎
  11. See 18 U.S.C. §§ 926B and 926C. ⤴︎