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…” 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.” 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.” 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.”
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. 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.”
In Overlook Terrace Management Corp. v. Rent Control Board of West New York, 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.” If the subject matter is not the same, “preemption is clearly inapplicable.” 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.
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.
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.
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.
Township of Chester v. Panicucci,) 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.
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.” 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.”
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. 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.
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.