Posted on August 19, 2015
Arizona Revised Statutes §13-3118 states that ” Except for the legislature, this state and any agency or political subdivision of this state shall not enact or implement any law, rule or ordinance relating to the possession, transfer, or storage of firearms other than as provided in statute.”
Further restrictions and exceptions to this general preemption statute are contained in Section 13-3108, which provides in part:
- Except as provided in subsection G 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.
- 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, since further amendment, currently 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 July 29, 2010, is null and void.1
This 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, in its current form, prohibits a political subdivision from requiring or maintaining a record in any form, whether permanent or temporary, including a list, log or database, of any of the following:
- Any identifying information of a person who leaves a weapon in temporary storage at any public establishment or public event, except that the operator of the establishment or the sponsor of the event may require that a person provide a government issued identification or a reasonable copy of a government issued identification for the purpose of establishing ownership of the weapon. The operator or sponsor must store any provided identification with the weapon and shall return the identification to the person when the weapon is retrieved. The operator or sponsor must not retain records or copies of any identification provided pursuant to this paragraph after the weapon is retrieved;
- Except in the course of a law enforcement investigation, any identifying information of a person who owns, possesses, purchases, sells or transfers a firearm; or
- The description, including the serial number, of a weapon that is left in temporary storage at any public establishment or public event.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 commercial land and structures, including firearms or ammunition-related businesses or commercial shooting ranges, in the same manner as other commercial businesses (but see 17-602(A), which states that outdoor shooting range noise standards are a matter of statewide concern). This provision does not authorize a political subdivision to regulate the sale or transfer of firearms on property it owns, leases, operates or controls in a manner that is different than or inconsistent with state law. This provision also does not authorize a political subdivision through a zoning ordinance to prohibit or regulate the otherwise lawful discharge of a firearm or maintenance or improvements directly related to the discharge on a private lot or parcel of land that is not open to the public on a commercial or membership basis; nor to regulate the otherwise lawful discharge of a firearm or maintenance or improvements directly related to the discharge on land that is used for agriculture or other non-commercial purposes. (It should be noted that for the purposes of this provision, a use permit or other contract that provides for the use of property owned, leased, operated or controlled by a political subdivision shall not be considered a sale, conveyance or disposition of property);
- Regulate employees or independent contractors of the political subdivision who are acting within the course and scope of their employment or contract; 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, the court rejected a section 13-3108(A) challenge to a Tucson ordinance that prohibits the use or possession of firearms within city parks.5 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.6 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.7 Note that, in 2010, the Arizona Legislature removed local authority to limit firearm possession in certain parks and preserves.8
The court of appeals again rejected a section 13-3108 challenge to a local firearm-related regulation in McMann v. City of Tucson.9 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).10 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.11
Following the McMann case, the Legislature amended section 13-3108, which permits local jurisdictions to regulate the land and structures of firearms and ammunition-related businesses in the same manner as other commercial businesses. The following provision was added in 2003:
Notwithstanding any other law, [section 13-3108] does not authorize a political subdivision to regulate the sale or transfer of firearms on property it owns, leases, operates or controls in a manner that is different than or inconsistent with state law. For the purposes of [section 13-3108], a use permit or other contract that provides for the use of property owned, leased, operated or controlled by a political subdivision shall not be considered a sale, conveyance or disposition of property.
Additionally, Section 17-602(A) states that outdoor shooting range noise standards are a matter of statewide concern, and provides that city, town, county and any other state noise standards are preempted as applied to outdoor shooting ranges. Section 17-605(A) states that compliance with Arizona Revised Statutes Title 17, Chapter 6, Article 1 is an affirmative defense to any civil liability or claim for equitable relief arising from any allegation regarding noise or noise pollution from an outdoor shooting range.
Finally, Arizona Revised Statutes § 12-714(A) states that “[a] political subdivision of this state shall not commence a qualified civil liability action in any Arizona court” against a firearms manufacturer or seller.
For further information about preemption in this state, contact the Law Center directly.
- Ariz. Rev. Stat § 13-3108(D). [↩]
- See 2010 Ariz. ALS 19. [↩]
- Ariz. Rev. Stat § 13-3108(C). [↩]
- Op. Ariz. Att’y Gen. I78-274, 1978 Ariz. AG LEXIS 16 (Nov. 3, 1978). [↩]
- 971 P.2d 207 (Ariz. Ct. App. 1998), superseded by statute, 2010 Ariz. ALS 19. [↩]
- Rineer, 971 P.2d at 210. [↩]
- Rineer, 971 P.2d at 210. [↩]
- 2010 Ariz. ALS 19. [↩]
- 47 P.3d 672 (Ariz. Ct. App. 2002), superseded by statute, 2003 Ariz. ALS 162 § 1. [↩]
- McMann, 47 P.3d at 674. [↩]
- Id. at 678. [↩]