Posted on December 1, 2013
“Preemption” occurs when a higher level of government removes regulatory power from a lower level of government. With very narrow exceptions, Congress has not expressly preempted state or local laws regulating firearms and ammunition. Most state constitutions generally allocate authority to local governments to regulate in the interests of the public health, safety and welfare. At the urging of the gun lobby, however, most states have explicitly removed authority from local governments to regulate guns and ammunition, thereby creating a dangerous exception to the traditional rule of local authority.
State preemption statutes threaten public safety because they prevent local governments from implementing customized solutions to gun violence in their communities and impede their ability to fill regulatory gaps created by inaction at the state and federal level. Moreover, by mandating a one-size-fits-all approach to firearms regulation, preemption statutes deprive the public of a critical problem-solving resource: local innovation.
Broad preemption statutes ignore important local variations that may necessitate distinct approaches to the problem of gun violence. A regulation in a densely-populated urban area may not be appropriate in a rural setting and vice versa. Moreover, there is often a large disconnect between statewide political priorities and local public safety needs. Local officials are more responsive to community needs, as they see the devastation caused by gun violence firsthand. For example, in 2009, the Tennessee Legislature legalized the carrying of concealed handguns in all public parks across the state.1 However, the statute contained a provision allowing local governments to opt out within a specified time frame, and roughly 70 cities and counties, including urban centers such as Nashville and Memphis, voted to keep concealed weapons out of their parks.2 Without the opt-out provision, Tennessee’s preemption clause would have denied these localities the ability to decide the issue based on their particular public safety needs.
Restrictions on state and federal resources also make an extra level of local involvement necessary to properly enforce many gun laws. As detailed in our summary on Dealer Regulations, the Bureau of Alcohol, Tobacco, Firearms & Explosives and state law enforcement agencies generally lack the resources or authority to properly oversee all the firearms businesses in their jurisdictions. In states without broad preemption statutes, local governments may fill this gap by imposing additional common sense requirements on gun dealers, such as employee background checks and mandatory on-site security systems to help ensure that these businesses operate responsibly.
In addition to hindering local flexibility, preemptions statutes also deny states access to innovative gun violence prevention policies. Local governments are often the source of cutting-edge laws to reduce gun violence which are later adopted at the statewide level. Over the last two decades, California has utilized this approach to great effect, with local governments in California adopting over 300 gun laws since the mid-1990s. Several of the state’s important firearms regulations, including a ban on the sale of “junk guns” and a law requiring that a locking device be included with every purchased firearm, originated at the city level and were later enacted by the legislature. More recently, local efforts to regulate ammunition sales have proven successful, as detailed in our summary on Ammunition Regulations. These successful local initiatives were only possible because California is among the handful of states that do not have an expansive preemption statute.
Local authorities across the country have expressed the desire to implement common sense ordinances to protect their citizens from gun violence. However, in states with broad preemption statutes, local governments are often powerless to fill dangerous gaps in state and federal law. A September 2010 report by Mayors Against Illegal Guns found that states that do not allow local control of gun laws are the sources of guns recovered from crimes in other states at a rate more than four times greater than states that do allow local governments to enact gun laws.3 Accordingly, the ability of local governments to enact strong gun laws can help prevent gun trafficking into other states.
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. Federal preemption of state law is uncommon in the area of firearms regulation, however.
Congress may make its intention to preempt an area of state law clear by expressly stating its 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.4
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.5 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.
States differ considerably in how and to what extent they preempt the regulation of firearms and ammunition. Specific questions about whether a particular type of local regulation may be preempted in any given state involve complex inquiry and analysis of existing case law. The Law Center is available to consult with officials and advocates on specific questions relating to their jurisdiction.
Generally, preemption occurs in two ways: through express preemption and implied preemption. Express preemption occurs when a state provides explicitly, in the language of a statute or constitutional provision, that it intends to remove a lower government’s regulatory authority. For example, the South Dakota legislature expressly preempts county legislative authority to regulate most aspects of firearms and ammunition with the following statutory language:
No county may pass any ordinance that restricts possession, transportation, sale, transfer, ownership, manufacture or repair of firearms or ammunition or their components. Any ordinances prohibited by this section are null and void.6
Absent an express statement, courts may infer an intent to take over a field of regulation, even though there is no express legislative statement to that effect. This is referred to as implied preemption. In general, courts may find that a local law is preempted if it conflicts directly with state law by requiring what the state law prohibits, or prohibiting what the state law requires. In addition, when a comprehensive scheme of state regulation exists on a particular subject matter, many state courts find that the state legislature thereby indicated an intent to assert exclusive authority over that subject matter.7
The existence and degree of express state preemption of local firearms and ammunition regulation varies from state to state, as do the tests courts use to determine whether implied preemption exists.
The discussion below groups the states into three categories based on the extent of express preemption of local authority to regulate firearms and ammunition and then comments on issues of implied preemption where appropriate:
1. States with no provision or statute expressly preempting local regulation of firearms or ammunition: Connecticut, Hawaii, Massachusetts, New Jersey, New York
In Connecticut, Hawaii, Massachusetts, New Jersey and New York, there are no state laws expressly preempting local authority to regulate firearms or ammunition. In Connecticut, Massachusetts, New Jersey and New York, courts have interpreted the degree to which local governments can regulate firearms in the absence of express preemption. Although each local law must be evaluated on a case-by-case basis, some general preemption principles for each state are outlined below.8
Connecticut: In Connecticut, a local government is preempted from regulating a subject matter when the state has demonstrated an intent to occupy the entire field of regulation in that area or when the ordinance at issue irreconcilably conflicts with a state law.9 Connecticut courts have not found that the legislature has demonstrated an intent to occupy the field of firearms and ammunition regulation.10 Thus, absent a direct conflict with state law, broad local firearms and ammunition regulation appears to be possible.
Hawaii: Hawaii courts, like those in Connecticut, will generally find that a local ordinance is preempted when it addresses an area the state has intended to regulate exclusively and uniformly, and/or when it conflicts with state law.11 The Law Center is not aware of any published case interpreting the extent of local authority to regulate firearms and ammunition in Hawaii. In the absence of any contrary authority, it appears that local governments have broad authority to regulate firearms and ammunition unless there is a conflict with state law.
Massachusetts: When presented with a preemption challenge, Massachusetts courts consider whether an inference can be made that the legislature intended to preempt the subject matter addressed by the ordinance at issue. Courts may infer such intent when a local law frustrates the purpose of a state law either directly or due to a comprehensive scheme enacted by the legislature.12 Courts also may find that local law is preempted if it conflicts with state law.13 Thus, so long as there is no conflict with state law, it appears that local governments may regulate broadly in the area of firearms and ammunition. Furthermore, even when a state law and a local law address the same subject area, a stricter local law may be permissible. For example, the Supreme Judicial Court of Massachusetts upheld a local firearm discharge ban, finding that it did not frustrate the state’s hunting license law even though it was more stringent than state law concerning the safe use of firearms.14
New Jersey: New Jersey municipalities enjoy express authority to regulate and prohibit the sale and use of firearms.15 However, local governments may not enact regulation that conflicts with any policy of the state.16 In the absence of a conflict, local governments appear to have broad authority to regulate firearms and ammunition, and at least in one area of firearms regulation, are authorized to enact local laws that are stricter than state laws addressing the same subject.17 In a case upholding a local firearms discharge ordinance, the New Jersey Supreme Court concluded that a state law regulating hunting was not intended to preempt a stricter local law.18
New York: New York courts use a test to evaluate preemption challenges, which is similar to many of those described above – a local law may not conflict with a state law or regulate in an area that is occupied by the state.19 New York courts have not found that the state has preempted the broad field of firearms and ammunition regulation. Courts have upheld several local firearms laws against preemption challenges and have found that the state has intended to occupy only limited areas of firearms regulation, such as the regulation of air guns.20 Thus, local governments in New York appear to have broad authority to regulate firearms and ammunition absent conflict with state law.
2. States with provisions expressly preempting local regulation of one or more aspects of firearms or ammunition but otherwise permitting broad regulation of firearms and ammunition at the local level: California, Nebraska
In California and Nebraska, local governments retain authority to regulate firearms and ammunition, but the state legislature has expressly removed this authority in certain areas.
California: California expressly preempts local governments from regulating in the areas of registration or licensing of firearms; manufacture, sale or possession of imitation firearms; and licensing or permitting with respect to the purchase, ownership, possession or carrying of a concealable firearm in the home or place of business.21 In other areas, courts have found that local governments have a great deal of authority to regulate firearms and ammunition in their communities.22 For example, courts have rejected preemption challenges to many local firearms and ammunition laws, including ordinances regulating the location and operation of firearms dealers, and the sale and possession of firearms and ammunition on county-owned property.23
Nebraska: In 2009, Nebraska enacted a law depriving cities and villages of “the power to regulate the ownership, possession, or transportation of a concealed handgun,” at least as applied to people authorized to carry a concealed handgun under Nebraska law.24 Like most states, Nebraska requires a person to obtain a permit to carry a concealed handgun in public. In 2010, Nebraska clarified that cities and villages are also prohibited from requiring the registration of a concealed handgun owned, possessed, or transported by a holder of a concealed carry permit.25 According to the Attorney General of Nebraska, these provisions invalidated Omaha’s handgun registration requirement as applied to concealed carry permit holders.26 For more information about concealed carry permits, see our summary on Carrying Concealed Weapons. For more information about the registration of firearms, see our summary on the Registration of Firearms. There are no laws expressly limiting local authority to regulate firearms or ammunition in Nebraska outside of the context of concealed handgun permit holders.
3. States that have enacted broad preemption statutes
In the remaining 43 states, local governments possess limited authority to regulate firearms and ammunition. The preemption statutes in these states vary, but each one expressly preempts all, or substantially all, aspects of local firearms and/or ammunition regulation. In many of these states there are statutory exceptions that may permit some local firearms and/or ammunition regulation.27 The Law Center is available to assist public officials and activists in evaluating potential local strategies to prevent gun violence.
- Tenn. Code Ann. § 39-17-1311(b)(1)(I), (J). [↩]
- Id. § 39-17-1311(d), (e). Legal Community Against Violence, The 2010 Report: Recent Developments in Federal, State, and Local Gun Laws 33 (Aug. 2010), at http://smartgunlaws.org/the-2010-report-recent-developments-in-federal-state-and-local-gun-laws/. [↩]
- Mayors Against Illegal Guns, Trace the Guns: The Link Between Gun Laws and Interstate Gun Trafficking 24-25 (Sept. 2010), at http://www.tracetheguns.org/report.pdf. [↩]
- 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). [↩]
- Id. [↩]
- S.D. Codified Laws § 7-18A-36. [↩]
- See, e.g., Cal. Rifle & Pistol Ass’n v. City of W. Hollywood, 78 Cal. Rptr. 2d 591 (Cal. Ct. App. 1998) (discussing the doctrine of implied preemption in California and rejecting a preemption challenge to a local ban on Saturday Night Specials). [↩]
- Please note that the authority enjoyed by different types of local governmental entities varies from state to state. (For example, a county may have less authority to regulate than that enjoyed by a city. [↩]
- Dwyer v. Farrell, 475 A.2d 257 (Conn. 1984) (holding that a New Haven law regulating handgun sales conflicted with an existing state law and thus was preempted). [↩]
- Note that Connecticut courts have found that the area of hunting regulation has been occupied by the state. See, e.g., Kaluszka v. Town of East Hartford, 760 A.2d 1282 (Conn. Super. Ct. 1999). [↩]
- Richardson v. City and County of Honolulu, 868 P.2d 1193 (Haw. 1994) (holding that a local ordinance providing a mechanism for transfer of property interests was not preempted by state law). [↩]
- Connors v. City of Boston, 714 N.E.2d 335, 337-38 (Mass. 1999). [↩]
- Id. [↩]
- Town of Amherst v. Att’y Gen., 502 N.E.2d 128 (Mass. 1986). [↩]
- N.J. Stat. Ann. § 40:48-1(18). “Municipalities” refers to cities, towns, townships, villages and boroughs, but not counties. N.J. Stat. Ann. § 40:42-1. For additional sources of authority for municipalities and for counties, see N.J. Stat. Ann. §§ 40:48-2, 40:41A-27; N.J. Const. art. IV, § VII, ¶ 11. [↩]
- N.J. Stat. Ann. § 2C:1-5(d). A local law may conflict with a state policy by “exclusion” or “inclusion.” See, e.g., State v. Crawley, 447 A.2d 565 (N.J. 1982); Mack Paramus Co. v. Mayor and Council of Borough of Paramus, 511 A.2d 1179 (N.J. 1986). See also Overlook Terrace Management Corp. v. West New York Rent Control Bd., 366 A.2d 321 (N.J. 1976), in which the Supreme Court of New Jersey developed a five-part test for determining whether a local law is preempted by state law. [↩]
- Township of Chester v. Panicucci, 299 A.2d 385, 389 (N.J. 1973) (“[T]he prohibition against possession of a loaded gun, for the purpose of hunting, within a prescribed distance of an occupied dwelling or school playground simply represents a declaration of statewide policy of minimum regulation.”). Despite this statutory and case law supporting municipal authority to regulate firearms, a superior court case invalidated a local firearms ordinance limiting handgun sales and purchases to one per person per 30-day period, on preemption grounds. In 2008, a New Jersey appeals court affirmed the ruling, on the grounds that state law preempted the local law. However, that appellate court opinion and judgment were vacated, and the appeal dismissed as moot, by the Supreme Court of New Jersey because the state legislature adopted an identical 30-day handgun sales limitation while the Supreme Court appeal was pending. Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v. City of Jersey City, 201 N.J. 444 (2010). [↩]
- Id. [↩]
- DJL Restaurant Corp. v. City of New York, 749 N.E.2d 186, 190 (N.Y. 2001). [↩]
- See, e.g., People v. Stagnitto, 691 N.Y.S.2d 223 (N.Y. App. Div. 1999) (rejecting preemption challenge to city ordinance regulating assault weapons); Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193 (N.Y. Sup. Ct. 1994) (rejecting preemption challenge to ordinance banning assault weapons but finding regulation of manufacture, sale, and possession of air guns preempted by state law); Grimm v. City of New York, 289 N.Y.S.2d 358 (N.Y. Sup. Ct. 1968) (rejecting preemption challenge to ordinance requiring licensing and registration of rifles and shotguns); People v. Del Gardo, 146 N.Y.S.2d 350 (City Magis. Ct. 1955) (finding ordinance banning imitation handguns preempted by state law). [↩]
- Cal. Gov’t Code § 53071 (preempting registration or licensing of commercially manufactured firearms); Cal. Gov’t Code § 53071.5 (preempting regulation of the manufacture, sale or possession of imitation firearms); Cal. Penal Code § 25605(b) (prohibiting permit or license with respect to the purchase, ownership, possession, or carrying of a handgun in a residence or place of business). [↩]
- See, e.g., Suter v. City of Lafayette, 67 Cal. Rptr. 2d 420, 425 (Cal. Ct. App. 1997) (“That state law tends to concentrate on specific areas, leaving unregulated other substantial areas relating to the control of firearms, indicates an intent to permit local governments to tailor firearms legislation to the particular needs of their communities.” Note however, that while the Suter court upheld an ordinance regulating the location and operation of firearms dealers, it struck down the portion of the ordinance regulating firearm storage). [↩]
- Cal. Rifle and Pistol Ass’n, Inc. v. City of W. Hollywood, 78 Cal. Rptr. 2d 591 (Cal. Ct. App. 1998) (upholding ordinance banning junk guns); Suter, 67 Cal. Rptr. 2d at 425 (upholding ordinance regulating the location and operation of firearms dealers); Great Western Shows, Inc. v. County of Los Angeles, 44 P.3d 120 (Cal. 2002) (upholding ordinance banning the sale of firearms and ammunition on county-owned property); Nordyke v. King, 44 P.3d 133 (Cal. 2002) (upholding ordinance banning possession of firearms and ammunition on county-owned property). In contrast, in Doe v. City and County of San Francisco, 186 Cal. Rptr. 380 (Cal. Ct. App. 1982), the court held that California Gov’t Code § 53071 and Cal. Penal Code § 12026 (subsequently renumbered as § 25605) preempted a San Francisco ordinance banning handgun possession. Because the ordinance contained an exception for concealed weapons licensees, the court found 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. Similarly, in Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895 (Cal. Ct. App. 2008), the same court that decided the Doe case, held that 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 California Supreme Court declined to review the case. [↩]
- 2009 Neb. ALS 430 (codified as Neb. Rev. Stat. § 18-1703). See also Neb. Rev. Stat. Ann. §§ 14-102, 15-255, 16-227, 17-556, 69-2401, 69-2425. [↩]
- 2010 Neb. ALS 817, § 2. [↩]
- Op. Att’y Gen. 10008 (March 26, 2010), 2010 Neb. AG LEXIS 7. [↩]
- In 2006, in a 3-3 split decision, the Colorado Supreme Court affirmed a trial court ruling which found that state laws expressly preempting firearms regulation unconstitutionally infringed on Denver’s home rule authority with respect to ordinances addressing the open carrying of firearms and banning assault weapons and Saturday night specials. State v. City and County of Denver, 139 P.3d 635 (Colo. 2006). The court also held, however, that Denver’s ordinances addressing juvenile possession of firearms, carrying concealed firearms with a permit in a public park, and concealed weapon permitting were invalid because they conflicted with state law. As a result, local jurisdictions in Colorado may enact ordinances that utilize some, but not all, policy options to reduce gun violence. But see City of Cleveland v. State, 128 Ohio St. 3d 135 (Ohio 2010) (rejecting a home rule challenge to Ohio’s preemption statute). [↩]