Local Authority to Regulate Firearms in Oklahoma

Posted on Tuesday, July 28th, 2015

Oklahoma has a detailed preemption statute that provides:

The State Legislature hereby occupies and preempts the entire field of legislation in this state touching in any way firearms, knives, components, ammunition, and supplies to the complete exclusion of any order, ordinance, or regulation by any municipality or other political subdivision of this state. Any existing or future orders, ordinances, or regulations in this field, except as provided for in paragraph 2 of this subsection and subsection C of this section, are null and void.1

Oklahoma also prohibits any political subdivision from adopting any “order, ordinance, or regulation concerning in any way the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, carrying, bearing, transportation, licensing, permit, registration, taxation other than sales and compensating use taxes, or other controls on firearms, knives, components, ammunition, and supplies.”2  In 2012, the state also added language to its preemption statute clarifying that “the otherwise lawful open carrying of a handgun under the provisions of the Oklahoma Self-Defense Act shall not be punishable by any municipality or other political subdivision of [Oklahoma] as disorderly conduct, disturbing the peace or similar offense against public order.”3

Municipalities may, however, adopt an ordinance:

  • Relating to the discharge of firearms within the jurisdiction; or
  • Allowing the municipality to issue a traffic citation for transporting a loaded pistol in a vehicle without a valid concealed handgun permit, provided however, that penalties contained for violation of such ordinance shall not exceed the penalties established in the Oklahoma Self-Defense Act.4

In addition, Oklahoma does not prohibit “any order, ordinance, or regulation by any municipality concerning the confiscation of property used in violation of the ordinances of the municipality.”5 No municipal ordinance relating to transportation of a firearm or knife improperly may include a provision for confiscation of property.6

Oklahoma law states that, in enacting the Oklahoma Self-Defense Act (providing for licenses to carry concealed handguns), the state “finds it necessary to occupy the field of regulation of the bearing of concealed or unconcealed handguns.”7

There is no case law interpreting these statutory provisions.

The Oklahoma Attorney General has opined, however, that the boards of Oklahoma’s public libraries may ban patrons from bringing concealed weapons into the libraries.8 While Okla. Stat. Ann. tit. 21, § 1289.24(A) preempts firearm-related ordinances by “political subdivisions,” which may include a county or multi-county library, the Attorney General stated that “a plain reading of [Oklahoma's concealed weapons licensing and preemption statutes] expresses a specific legislative intent to allow Libraries [sic], as property owners, to control the possession of weapons on property owned or controlled by the library” to the extent of the boundaries of their property.9

Finally, Okla. Stat. Ann. tit. 21, § 1289.24(D) provides that when a person’s rights under section 1289.24 have been violated, the person shall have the right to bring a civil action against the responsible persons, municipality, and political subdivision jointly and severally for injunctive relief, monetary damages or both such remedies. The Attorney General has opined that section 1289.24(D) does not impose civil liability on a municipal or county law enforcement officer if the officer acts in conformity with state law in seizing a firearm transported in violation of section 1289.13A (improper transportation of a firearm) or other state firearm-related statutes.10

In 2012, Oklahoma adopted a law prohibiting municipal and state officials from prohibiting or suspending the sale, ownership, possession, transportation, carrying, transfer, and storage of firearms, ammunition, and ammunition accessories during a declared state of emergency, that are otherwise legal under state law. 11

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

State Right to Bear Arms in New York

Posted on Tuesday, July 28th, 2015

New York Civil Rights Law article II, § 4 provides that “[a] well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.”

New York courts have held that the rights conferred by this provision are co-extensive with the rights conferred by the Second Amendment to the U.S. Constitution.1

In 1943, an appellate court in New York affirmed a trial court decision denying petitioner’s application for a concealed carry license.2 The court ruled that “authoritative Federal decisions construing the Second Amendment may properly be applied to the State statute,”3 and noted that “local authorities, having in view considerations of public safety and the maintenance of law and order in their community, shall ascertain whether ‘proper cause exists for the issuance’ of the desired license.”4

More recently, in the 2009 case People v. Perkins, a New York trial court rejected a section four challenge to New York’s pistol permit requirement.5 The defendant relied on the Supreme Court’s decision in District of Columbia v. Heller, which held that the District of Columbia’s ban on handgun possession in the home violated the Second Amendment.6 The court rejected this challenge to the state permit requirement, pointing out that the defendant in this case was not in his home at the time of the crime, and did not have a valid pistol permit.7 According to the court, the right conferred by the Second Amendment—and, by extension, section four—“is not absolute and may be limited by reasonable governmental restrictions.”8 The court reasoned that the state law “does not effect a complete ban on handguns and is, therefore, not a ‘severe restriction’ improperly infringing upon defendant’s Second Amendment rights. Moreover, in our view, New York’s licensing requirement remains an acceptable means of regulating the possession of firearms … and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner.”9

Second Amendment challenges to various New York gun laws have been rejected in recent years.  For example, in the 2012 case Kachalsky v. County of Westchester, the Second Circuit upheld  the “proper cause” requirement of New York’s concealed carry permitting laws.10 Noting that there was “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety,”11 the court applied intermediate scrutiny, and found that “[r]estricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention.” As such, the court concluded that the challenged law did not violate the Second Amendment.12

Similarly, in 2013, the Second Circuit held, in Kwong v. Bloomberg,13 that a statute requiring a fee for a residential handgun license was constitutional.  Among other reasons, the court found that the $340 fee for a three-year license was nothing more than a “marginal, incremental or even appreciable restraint on [plaintiff’s] Second Amendment rights.”14  The court found that “the licensing fee is designed to allow the City of New York to recover the costs incurred through operating its licensing scheme, which is designed to promote public safety and prevent gun violence.”15  In light of this, the court concluded that the challenged fee “easily survives intermediate scrutiny.”16

For more on how federal courts have interpreted the scope of the Second Amendment, see the Law Center’s Post-Heller Litigation Summary.

  1. See, e.g., Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 198 (N.Y. Sup. Ct. 1994) (noting that the Second amendment is identical in its language to article 2, section 4 of the Civil Rights Law, and that the Second Amendment “should be used in interpreting the provisions of this State law); Guida v. Dier, 375 N.Y.S.2d 826, 828 (N.Y. Sup. Ct. 1975), modified on other grounds, 387 N.Y.S.2d 720 (N.Y. App. Div. 1976) (noting that the “right guaranteed by the Second Amendment” is “further defined in section 4 of article 2 of the Civil Rights Law”). []
  2. Moore v. Gallup, 45 N.Y.S.2d 63 (N.Y. App. Div. 1943). []
  3. Id. at 66. []
  4. Id. at 67. []
  5. 880 N.Y.S.2d 209 (N.Y. Sup. Ct. 2009). []
  6. 554 U.S. 570 (2008). []
  7. 880 N.Y.S.2d at 210. []
  8. Id. []
  9. Id. []
  10. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012). []
  11. Id. at 94-95. []
  12. Id. at 98. []
  13. Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013). []
  14. Id. at 167 (quotations omitted). []
  15. Id. at 169. []
  16. Id. (quotations omitted). []

State Right to Bear Arms in North Dakota

Posted on Tuesday, July 28th, 2015

Article I, § 1 of the North Dakota Constitution states that all individuals have certain “inalienable rights,” and includes among them the right “to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.”1 This provision was added to the state constitution in 1984 by an “initiated amendment.”

There is not much case law interpreting article I, § 1.  In the 1987 case State v. Ricehill.2, the defendant was convicted under a state law prohibiting the possession of a firearm by a convicted felon. He challenged the conviction, arguing, among other things, that the statute violated his state constitutional right to “keep and bear arms.” The Supreme Court of North Dakota rejected the argument that the phrase “shall not be infringed” should be interpreted as precluding the Legislature from placing any limits on the possession of arms, stating:

We disagree with such a broad reading of the provision. Instead, we believe our Constitution’s protection of the right to keep and bear arms is not absolute; although it prevents the negation of the right to keep and bear arms, that right nevertheless remains subject to reasonable regulation under the State’s police power.3

The court went on to find the challenged law to be “patently reasonable” and thus within the legitimate scope of the state’s police power.4

In 1998, the same court ordered that an application for a concealed weapon license must be approved, by the sheriff, “within a reasonable time, unless the applicant has objectively failed the ‘testing procedure’ specified [by statute].”5 North Dakota law enumerates the two conditions which must be met, after which the sheriff must approve an application: 1) a background check, and 2) attendance at a testing procedure.6 While noting the ruling in Ricehill that the right to keep and bear arms “remains subject to reasonable regulation under the State’s police power,”7 the Kasprowicz court nevertheless concluded that “the legislature did not intend to give sheriffs discretionary authority to deny licenses.”8

  1. N.D. Const. Art. I, § 1. []
  2. 415 N.W.2d 481 (1987). []
  3. Id. at 483. []
  4. Id. at 483-84. []
  5. Kasprowicz v. Finck, 574 N.W.2d 564, 568 (N.D. 1998). []
  6. N.D.C.C. § 62.1-04-03(1)(c). []
  7. 574 N.W.2d at 566 (quoting Ricehill, 415 N.W.2d 481). []
  8. 574 N.W.2d at 567. []

Local Authority to Regulate Firearms in New York

Posted on Tuesday, July 28th, 2015

New York Constitution Art. IX, § 2(c) and New York Municipal Home Rule Law § 10(1)(ii)(a)(12) (containing substantially the same language) confer broad power upon local governments to adopt laws that relate to, among other things, the “protection, order, conduct, safety, health and well-being of persons or property.” However, local laws may not conflict with the state constitution or general laws.1 State courts have found the regulation of weapons to be a legitimate exercise of local police power.2

In DJL Restaurant Corp. v. City of New York,3 a non-firearms case from 2001, the New York Court of Appeals (the highest court in New York) explained the two ways in which state law preempts local law: 1) when a local law directly conflicts with a state statute; and 2) when a local government legislates in a field which the state occupies, either expressly or by implication.4 Conflict occurs when local law prohibits conduct which the state either allows or does not proscribe, or imposes additional restrictions on rights granted by state law.5 State occupation of a field can be found from an express declaration by the state or impliedly from “the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area.”6

New York has not expressly preempted local firearms or ammunition ordinances, nor has the legislature universally been found to have impliedly preempted the broad field of firearms regulation. For example, in the 1999 case People v. Stagnitto, the New York Court of Appeals rejected defendant’s contention that Rochester’s assault weapon law was preempted by section 265.00 et seq. (New York’s Penal Code provisions regulating firearms and other dangerous weapons), stating, “[t]he mere fact that a local ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate it.”7

In the 1968 case Grimm v. City of New York,8 a court determined that New York City’s licensing and registration law regarding rifles and shotguns was not preempted by state law.9 The court stated that while state law addressed the possession of rifles or shotguns by persons under age 16, aliens, convicted felons and adjudicated incompetents (see § 265.00 et seq.), it did not deal “so extensively with the subject of the control of such weapons as to evidence any design or intention by the State to pre-empt the entire field.”10

In a 1994 case, Citizens for a Safer Community v. City of Rochester,11 the New York Superior Court held that state law did not preempt a city from regulating the possession and sale of assault weapons with large capacity ammunition magazines or certain accessories.12 “Clearly, the State has not, either directly or indirectly, regulated all aspects of gun possession and use as to time, place and circumstance.”13 However, the court also held that federal and state law (15 U.S.C. § 5001(g), and N.Y. Gen. Bus. Law §§ 870 and 871, respectively) established an intent to fully regulate “the manufacture, sale and possession of air guns, spring guns, and imitation arms,” thereby preempting the portion of the City’s ordinance defining “air guns” (which was also found to be vague and overbroad).14

In the 2014 case, De Illy v. Kelly,15, a New York appellate court upheld a local regulation that allows firearm possession restricted by state law. The De Illy court rejected a preemption challenge to New York City’s creation of a “premise” license that allows a permittee to possess a firearm on his or her premises and to transport the firearm to authorized target ranges and hunting areas. The court found that although the state law regulating premise licenses,16 does not permit licensees to transport weapons, the law has not otherwise preempted the entire field, and the local law is merely an acceptable supplement to state law in this area.17

Some New York courts have found certain firearm ordinances to be preempted by state law. Most significantly, in the 2010 case Matter of Chwick v Mulvey,18, the court held that New York state law implicitly preempted a Nassau County ordinance prohibiting the possession of “deceptively colored” handguns. The court held that the ordinance interfered with the licensing provisions of New York law by making it illegal for an individual to possess a deceptively colored handgun in Nassau County even though such individual held a valid firearms license under state law.19 Further, the appellate court held that the comprehensive and detailed regulatory language and scheme of state law demonstrated the legislature’s intent to preempt the field of firearm regulation.20

In the 1968 case People v. Kearse,21, defendants challenged part of a Syracuse law allowing the mayor to prohibit persons from carrying or possessing firearms during “special emergencies,” arguing that the ordinance made no exception for state license holders.22 The trial court agreed, noting that N.Y. Penal Law § 400.00(6) specifically provides that “[a]ny license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance.”23 (Emphasis added by the court.)

Finally, in People v. Del Gardo,24, the court invalidated a New York City ordinance banning any toy or imitation handgun which “substantially duplicates” an actual handgun (unless certain requirements were met), because the ordinance did not exempt cap guns, which state law permits the sale and use of “at all times.”25

  1. N.Y. Const. art. IX, § 2(c), N.Y. Mun. Home Rule Law § 10(1)(i), (ii). []
  2. See, e.g., People v. Stagnitto, 691 N.Y.S.2d 223 (N.Y. App. Div. 1999) (upholding city ordinance regulating assault weapons). []
  3. 749 N.E.2d 186 (N.Y. 2001). []
  4. Id. at 190. []
  5. Id. []
  6. Id. []
  7. Stagnitto, 691 N.Y.S.2d at 225; see also Richmond Boro Gun Club, Inc. v. City of New York, No. CV-92-0151(RR), *9, Report and Recommendation (E.D.N.Y. Apr. 16, 1992) (rejecting plaintiff’s motion for a preliminary injunction regarding New York City’s assault weapons ban, finding “no intent, either express or through ‘occupying the field’, on behalf of the state legislature to preempt the field of firearm regulation.”). []
  8. 289 N.Y.S.2d 358 (N.Y. Sup. Ct. Queens Co. 1968). []
  9. Id. at 363. []
  10. Id. []
  11. 627 N.Y.S.2d 193 (N.Y. Sup. Ct. 1994). []
  12. Id. at 201-02. []
  13. Id. []
  14. Citizens for a Safer Community, 627 N.Y.S.2d at 206. []
  15. 775 N.Y.S.2d 256 (N.Y. App. Div. 2004). []
  16. N.Y. Penal Law § 400.00(2)(a). []
  17. Id. at 256-57. []
  18. 915 N.Y.S.2d 578 (N.Y. App. Div. 2010). []
  19. Id. at 587. []
  20. Id. []
  21. 289 N.Y.S.2d 346 (N.Y. City Ct., Syracuse 1968). []
  22. Id. at 350-51. []
  23. Id. at 352. []
  24. 146 N.Y.S.2d 350 (City Magis. Ct. Manhattan 1955). []
  25. Id. at 354. (Emphasis added by the court.). []

State Right to Bear Arms in Oklahoma

Posted on Tuesday, July 28th, 2015

Article II, § 26 of the Oklahoma Constitution provides: “The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

In a 1998 case, State ex rel. Oklahoma State Bureau of Investigation v. Warren, the Supreme Court of Oklahoma held that “there is no absolute common-law or constitutional right to carry loaded weapons at all times and in all circumstances.”1 The court rejected various challenges to Okla. Stat. tit. 21, § 1290.11(A), which prohibits an individual arrested for a felony from obtaining a concealed handgun license. The court concluded that “[a]n individual’s right to keep and bear arms under a State Constitution…remains subject to reasonable regulation under the State’s police power.”2 In March 2004, the Oklahoma legislature amended the state’s Self-Defense Act to prohibit any “person, property owner, tenant, employer, or business entity [from establishing]…any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.”3

In the 1908 case Ex Parte Thomas, the Supreme Court of Oklahoma rejected an article II, § 26 challenge to a state law prohibiting the carrying of a concealed pistol.4 The court found that while the right to “bear arms” is a general right to be exercised by the people for their common defense, a pistol is not within “the character of arms in contemplation of the constitutional convention and of the people of the state” when they declared a right to “keep and bear arms,” and “bear arms” does not refer to “wearing them about the person as part of the dress.”5 The court stated that “the arms defendant had a right to bear, and which right could never be prohibited him, relates [sic] solely to such arms as are recognized in civilized warfare and not those used by the ruffian, brawler, or the assassin.”6

Similarly, in the 1929 case, Pierce v. State, the Court of Criminal Appeals of Oklahoma  rejected an article II, § 26 challenge to a law prohibiting the carrying of a concealed revolver.7 With respect to weapons not “recognized in civilized warfare,” the court stated that the Legislature has the power to not only prohibit their carrying “concealed or unconcealed,” but also “the power to even prohibit the ownership or possession of such arms.”8

  1. 975 P.2d 900, 902 (Okla. 1998). []
  2. Id. at 902-03. See also Bastible v. Weyerhaeuser, 437 F.3d 999 (10th Cir. 2006) (citing Warren and rejecting an article II, § 26 challenge to former Okla. Stat. tit. 21, § 1290.22, which at that time preserved the right of an employer to prohibit weapons on its property, including in a car within a parking lot). []
  3. Okla. Stat. tit. 21, § 1290.22(B). []
  4. 97 P. 260 (1908). []
  5. Id. at 262-264. []
  6. Id. at 265. []
  7. 275 P. 393 (Okla. Crim. App. 1929). []
  8. Id. at 395;see also Beard v. State, 122 P. 941 (Okla. Crim. App. 1912) (rejecting an article II, § 26 challenge to a law prohibiting carrying a concealed pistol); Mathews v. State, 244 P. 56 (Okla. Crim. App. 1926) (rejecting an article II, § 26 challenge to a law prohibiting carrying a concealed revolver). []

Local Authority to Regulate Firearms in North Dakota

Posted on Tuesday, July 28th, 2015

North Dakota’s broad preemption statute, North Dakota Century Code § 62.1-01-03, states:

A political subdivision, including home rule cities or counties, may not enact any ordinance relating to the purchase, sale, ownership, transfer of ownership, registration, or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void.

Although there is no case law construing this statute, the North Dakota Attorney General has stated that section 62.1-01-03 was intended to preempt local authority to regulate firearm purchase, sale, ownership, transfer, registration, and licensure, but not local authority to regulate possession of a firearm.1 The attorney general found evidence in the legislative history of section 62.1-01-03 supporting this interpretation. Noting that no state statute governs possession of a loaded firearm on public property, or on private property without the consent of the owner or person in charge, the attorney general concluded that section 62.1-01-03 does not prohibit a city from adopting an ordinance prohibiting such possession in these locations.2

N.D.C.C. § 37-01-21 prohibits a municipality from raising or appropriating money toward arming, equipping, supporting, or providing drillrooms or armories for any body of people associating as a military company or parading in public with firearms, with some exceptions.3

While section 62.1-02-05 generally prohibits possession of a firearm at a public gathering, subsection 62.1-02-05(3) states that a political subdivision may still enact a less restrictive ordinance relating to the possession of firearms at a public gathering, and that such an ordinance supersedes section 62.1-02-05 within the jurisdiction of the political subdivision.4)

Section 42-01-01.1 provides that if a sport shooting range remains in compliance with noise control or nuisance abatement rules or ordinances in effect on the date at which the range commenced operation, the range is not subject to a civil or criminal action resulting from or relating to noise generated by its operation. Furthermore, a rule, resolution, or ordinance relating to noise control, noise pollution, or noise abatement adopted by the state or a political subdivision may not be applied to prohibit the operation of a sport shooting range, provided the conduct was lawful and being conducted before the adoption of the rule, resolution, or ordinance.5 However, a political subdivision may regulate the location and construction of a sport shooting range after August 1, 1999.6 Section 42-01-01.1 specifically states that it applies to a county or city enacting a home rule charter under chapter 11-09.1, 40-05.1, or 54-40.4, “notwithstanding any other provision of law.” See the Immunity Statutes in North Dakota section for further information regarding the impact of section 42-01-01.1 on litigation against shooting ranges.

Please see the Local Authority to Regulate Firearms policy summary for a general discussion of this issue, as well as the Federal Preemption section of our federal law materials.

  1. ND Op. Att’y Gen. 86 (1988), 1988 N.D. AG LEXIS 20, *5-7. []
  2. Id. at *1-3, 8. []
  3. Exceptions include for escort duty at military burials, or for students in educational institutions where military science is taught). []
  4. N.D.C.C. § 62.1-02-05(3 []
  5. N.D.C.C. § 42-01-01.1 []
  6. Id. []

State Right to Bear Arms in New Jersey

Posted on Friday, July 24th, 2015

The New Jersey Constitution contains no provisions relating to the keeping or bearing of arms.  However, New Jersey courts have generally upheld in-state firearm regulations that were otherwise challenged on Second Amendment grounds.

In the 2010 case Crespo v. Crespo, 989 A.2d 827 (N.J. 2010), the Supreme Court of New Jersey held that the “seizure of a defendant’s firearms upon a finding of domestic violence” did not violate an individual’s Second Amendment right to bear arms.1  The court noted that the Second amendment right to keep and bear arms “is incorporated as against the States by the Fourteenth Amendment,” and that “the right to possess firearms clearly may be subject to reasonable limitations.”2

In 2013, the Superior Court of New Jersey concluded that a statute requiring a showing of justifiable need prior to the issuance of a firearm permit did not violate the Second Amendment right to bear arms.3  The court held that “[the] state law governing permits to carry handguns does not ‘burden any protected conduct’ under the Second Amendment,”4 and noted that it was unclear, in the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), whether the Second Amendment right extended outside the home.5

  1. 989 A.2d at 828. []
  2. Id. []
  3. In re Patano, 60 A.3d 507 (N.J. Super. Ct. App. Div. 2013). []
  4. Id. at 513, quoting Piszczatoski v. Filko, 840 F.Supp.2d 813, 829 (D.N.J. 2012). []
  5. 60 A.3d at 514.  See also In re Wheeler, 81 A.3d 728 (N.J. Super. Ct. App. Div. 2013) (upholding a similar standard of justifiable need for permits authorizing certain retired law enforcement officers to carry handguns). []

State Right to Bear Arms in Nevada

Posted on Friday, July 24th, 2015

The Constitution of the State of Nevada, Article 1, § 11(1) provides that “[e]very citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.”

There is little case law interpreting Article 1, § 11(1).

In 1968, the Supreme Court of Nevada held, in a case interpreting the Second Amendment to the United States Constitution, that “the authority to regulate weapons comes from a state’s police powers.”1 However, Hardison predated the 1982 enactment of Article 1, § 11(1).

More recently, in the 2012 case Pohlabel v. State, the Supreme Court of Nevada upheld a felon-in-possession statute against a defendant who argued that the statute violated his right to bear arms under article 1, § 11(1) by barring him from possessing a black powder rifle.2  The court held that the right to bear arms was not unlimited,3.)) and that barring a convicted felon from possessing firearms is rational because of the increased potential for danger.4  The court further concluded that “unpardoned felons are not included among those to whom the Nevada Constitution guarantees the right to keep and bear arms.”5

  1. Hardison v. State, 437 P.2d 868, 871 (Nev. 1968) (rejecting a Second Amendment challenge to a state law prohibiting a convicted felon from possessing a concealable firearm). []
  2. 268 P.3d 1264 (Nev. 2012). []
  3. Id. at 1268 (quoting District of Columbia v. Heller, 554 U.S. 570 (2008 []
  4. 268 P.3d at 1268. []
  5. Id. at 1272. []

Local Authority to Regulate Firearms in New Jersey

Posted on Friday, July 24th, 2015

Article 4, § VII, par. 11 of the New Jersey State Constitution confers broad powers on municipalities and counties:

The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.

State statutes treat municipalities and counties differently in terms of their local regulatory authority, however.

A. Municipal Regulatory Authority

New Jersey explicitly authorizes municipalities (defined to include cities, towns, townships, villages and boroughs, but not counties) to “[r]egulate and prohibit the sale and use of guns, pistols, [and] firearms…”1 Municipalities may also enact ordinances, regulations, rules and by-laws that are consistent with state and federal law for, inter alia, the “preservation of the public health, safety and welfare of the municipality and its inhabitants.”2 In 1973, the New Jersey Supreme Court recognized that N.J. Stat. Ann. § 40:48-2 grants municipalities “broad police power over matters of local concern and interest.”3 Furthermore, municipalities are described under state law as broad repositories “of local police power in terms of the right and power to legislate for the general health, safety and welfare of their residents.”4

Municipal regulatory power is constrained, however, by the doctrine of preemption. The essence of preemption is that a municipality, as an agent of the state, cannot act contrary to state law or policy.5 This is true even where the state has granted to municipalities explicit authority to regulate in a particular subject-matter area. Preemption does not exist, however, simply because the legislature has legislated in a subject-matter area; rather, “intent to occupy the field must appear clearly.”6

In Overlook Terrace Management Corp. v. Rent Control Board of West New York,7 the Supreme Court of New Jersey created, in 1976, a two-step test for courts to use when determining whether state law preempts a municipality from regulating a particular subject matter. Under this test, a court must initially determine “whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the State has acted.”8 If the subject matter is not the same, “preemption is clearly inapplicable.”9 If it is the same, the court must then consider the following five preemption factors to determine if the legislature intended to preempt the subject matter:

  • Whether the ordinance conflicts with state law, either because of conflicting policies or operational effect (i.e., does the ordinance forbid what the legislature has permitted or permit what the legislature has forbidden?);
  • Whether the legislature intended, expressly or impliedly, that state law be exclusive in the field;
  • Whether the subject matter reflects a need for uniformity;
  • Whether the state scheme is so pervasive or comprehensive that it precludes the coexistence of municipal regulation; and
  • Whether the ordinance stands “as an obstacle to the accomplishment and execution of the full purposes and objectives” of the legislature.10

Courts applying these factors do not always analyze each factor separately, but often blend them together in the analysis, ultimately relying on what the court believes to be the intent of the legislature when deciding whether state law or policy preempts a municipal ordinance.11

In addition, municipal authority to adopt ordinances regulating criminal activity is constrained by the preemption provisions of N.J. Stat. Ann. § 2C:1-5d. Those provisions are relevant because ordinances regulating firearms are often penal in nature, in that they impose criminal penalties. Section 2C:1-5d (enacted after section 40:48-1(18)) provides:

Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code.

Under this statutory provision, a court must determine whether the absence of a state ban on certain conduct indicates legislative intent to “decriminalize” that conduct. Any local regulation prohibiting such conduct will be deemed preempted by exclusion under section 2C:1-5d.12

Moreover, under N.J. Stat. Ann. § 2C:1-5d a municipality may not regulate a subject-matter area that the state has comprehensively regulated. State regulation may preempt that area due to the subject matter’s inclusion in state law.13

Township of Chester v. Panicucci,14) is the most authoritative case concerning municipal power to regulate firearms in New Jersey. In Panicucci, the Supreme Court of New Jersey, in 1973, interpreted section 40:48-1(18), holding that a statute regulating firearm discharge for hunters did not preempt a more stringent local law regulating firearm discharge for hunting and other activities. The court determined that the legislature did not intend to completely occupy the field of hunting safety to “preclude municipalities from also dealing with local aspects of the problem.” ((Id. at 389.)) Regarding section 40:48-1(18), the court held that the legislature did not intend to preempt the field of firearm control when it adopted a state gun control scheme, and that section 40:48-1(18) may be used by municipalities to regulate the sale and use of firearms.15

Panicucci supports municipal authority to regulate the sale and use of firearms under N.J. Stat. Ann. § 40:48-1(18). Because Panicucci predates the adoption of section 2C:1-5d, the creation of the Overlook Terrace factors, and the enactment of many of New Jersey’s firearm-related statutes, however, it is uncertain how much municipalities may rely on it. Subsequent pronouncements by the Supreme Court of New Jersey (in decisions not involving firearm regulation) do suggest, however, that local firearm ordinances are valid regulations not preempted by state law.

For example, in State v. Crawley, the Supreme Court of New Jersey held that the legislature’s repeal of a state law prohibiting loitering had the effect of preempting, by exclusion, a Newark ordinance that criminalized loitering. While the court found that the legislature made a conscious decision to decriminalize loitering, it emphasized that “a municipal ordinance will not be invalidated on preemption grounds merely because it deals with substantially the same subject matter as a state statute.”16 The court cited Panicucci as support for this proposition, noting that although in Panicucci “the statute and [firearm] ordinance overlapped, we found no preemption because we concluded that the legislature did not intend to prohibit complementary local [gun] legislation.”17

In an unpublished case from 2010, Faraci v. Monmouth County Bd. of Rec. Comm’rs, 2010 N.J. Super. Unpub. LEXIS 151 (Jan. 25, 2010), a state appeals court found that a municipal ordinance banning the discharge of firearms and other weapons was in conflict with, and preempted by, a county measure adopted pursuant to state authority that specifically intended to enable county commissioners to have exclusive control over the regulation of county parks.18 The appeals court found that the municipal ordinance met all five Overlook Terrace factors, favoring preemption, while noting that its decision is consistent with the ruling in Panicucci.

Finally, in 2008, a New Jersey appeals court affirmed a superior court ruling that had invalidated a Jersey City ordinance limiting handgun sales and purchases to one per person within a 30-day period, on the grounds that state law preempted the local law. ((Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 955 A.2d 1003 (N.J. Super. Ct. App. Div. 2008).)) 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 appeal was still pending.19

In sum, the intent of the legislature to make a gun law exclusive of local regulation, or to permit local regulation regardless of state law, is the paramount question in determining whether municipal gun ordinances are valid local regulations or are preempted by state law. The validity of such ordinances likely will be determined on a case-by-case basis.

B. County Regulatory Authority

The power of counties to regulate locally is provided under Art. 4, § VII, par. 11 of the New Jersey State Constitution, discussed above. New Jersey Statutes Annotated § 40:41A-27b expressly permits charter counties to, among other things, “[a]dopt, amend, enforce, and repeal ordinances and resolutions.” Counties in New Jersey appear to be authorized to use their constitutionally-conferred regulatory authority to enact ordinances that complement current state firearm policies.

  1. N.J. Stat. Ann. § 40:48-1(18). []
  2. N.J. Stat. Ann. § 40:48-2. []
  3. Twp. of Chester v. Panicucci, 299 A.2d 385, 387-88 (N.J. 1973). []
  4. N.J. Stat. Ann. § 40:41A-28. []
  5. Summer v. Teaneck, 251 A.2d 761, 764 (N.J. 1969). []
  6. Id. []
  7. 366 A.2d 321 (N.J. 1976). []
  8. Id. at 326. []
  9. Id. []
  10. []
  11. See, e.g.Mack Paramus Co. v. Mayor and Council of Borough of Paramus, 511 A.2d 1179, 1184-86 (N.J. 1986). []
  12. See State v. Crawley, 447 A.2d 565 (N.J. 1982). []
  13. See Mack Paramus Co.supra note 10. []
  14. 299 A.2d 385 (N.J. 1973 []
  15. Id. at 390. []
  16. Crawley, 447 A.2d at 569-70. []
  17. Id. at 570. []
  18. Faraci, 2010 N.J. Super. Unpub. LEXIS 151, at *10-*11. []
  19. See Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 992 A.2d 1 (N.J. 2010). []

Local Authority to Regulate Firearms in Nevada

Posted on Friday, July 24th, 2015

The Nevada Legislature has broadly preempted counties and cities from regulating firearms. Nevada Revised Statutes Annotated § 268.418(1) provides:

Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms and ammunition in Nevada, and no city may infringe upon those rights and powers. As used in this subsection, “firearm” means any weapon from which a projectile is discharged by means of an explosive, spring, gas, air or other force.

Nevada provides identical prohibitions for counties and towns.1 As a limited exception, counties and cities, as well as towns, may regulate the “unsafe discharge of firearms.”2

If the governing body of a city in a county whose population is 700,000 or more, or a board of county commissioners in a county whose population is 700,000 or more, or a town board in a county whose population is 700,000 or more, has required by ordinance or regulation (adopted before June 13, 1989) the registration of a firearm capable of being concealed, the governing body or board shall amend such an ordinance or regulation to require a period of at least: a) 60 days of residency in the city, town or county before registration of such a firearm is required; and b) 72 hours for the registration of a pistol by a resident of the city, town or county upon transfer of title to the pistol to the resident by purchase, gift or any other transfer.3

There are no cases interpreting sections 244.364, 268.418 or 269.222.

  1. Nev. Rev. Stat. Ann. §§ 244.364(1), 269.222(1). []
  2. Nev. Rev. Stat. Ann. §§ 244.364(2), 268.418(2), 269.222(2). []
  3. Nev. Rev. Stat. Ann. §§ 244.364(3), 268.418(3), 269.222(3). []