State Firearm Preemption Laws

July 9, 2015

Bottom Line: As the result of a concerted lobbying campaign by the National Rifle Association, more than 40 states have passed broad firearm preemption laws that specifically prohibit local governments from adopting reasonable gun laws tailored to local conditions. These laws prevent local mayors and police chiefs — the officials most familiar with local criminal activity and how to address it — from passing common-sense public safety measures designed to keep their communities safe. State firearm preemption laws:

Override tradition and common sense by imposing identical gun laws on cities wracked with gun violence and rural areas where responsible gun ownership is more embedded in daily life;

Are associated with increased rates of gun trafficking; and

Lead to dangerous and illogical results, such as allowing a city to keep knives out of parks, rec centers, and city halls, but forcing the same city to allow guns in these sensitive places.

State firearm preemption laws are a relatively recent phenomenon inconsistent with centuries of American history in which cities and rural areas had different gun laws.

From the earliest days of the republic, communities adopted a wide range of gun laws tailored to local conditions, with generally stronger gun laws in densely populated cities with greater potential for violent crime, and fewer regulations in less crowded, rural areas.

  • Cities like Philadelphia, New York, and Boston had extensive rules on gunpowder and gun use dating to the colonial era,Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 LAW & HIST. REV. 139, 162 (2007); Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 510-12 (2004)). and throughout the 19th Century, state legislators expressly granted newly incorporated cities the power to enact such laws.See generally Joseph Blocher, Firearm Localism, 123 Yale L.J. 82 (2013).
  • As the country expanded, “Wild West” cities like Dodge City, Tombstone, and others adopted strong firearm regulations. Many banned firearms outright within city limits, requiring visitors from frontier areas — where gun possession and use was widespread — to check their firearms with law enforcement at the city limits.See generally Robert R. Dykstra, The Cattle Towns 119-121 (1983); Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America 165-173 (2011).
  • Throughout the nation’s history, local communities faced few or no obstacles to enacting locally-tailored gun laws. Indeed, prior to 1980, only a handful of states had any form of firearm preemption laws.

Consistent with the tradition of local gun laws, in 1981, Morton Grove, Illinois adopted an ordinance that prohibited the possession of handguns. This sparked a furious backlash from the gun lobby, and the NRA launched a concerted effort to persuade state legislators to enact sweeping laws that bar municipalities from enacting gun laws.See Joe Palazzolo, Gun Rights Groups Target Local Rules, Wall Street Journal, Feb. 6, 2013, at http://on.wsj.com/1mWeIFb

  • The NRA’s campaign succeeded: today, 42 states have broad firearm preemption laws. Only California, Connecticut, Hawaii, Illinois, Massachusetts, Nebraska, New Jersey and New York generally allow local officials to pass firearms-related public safety laws.Illinois allows localities to regulate possession and transfer of long guns and the transfer of handguns — but it does not allow localities to regulate handgun possession or carry.

The gun lobby’s preemption campaign aims not only to tie the hands of local officials, but to intimidate and punish those who attempt to reduce gun violence through local public safety ordinances.

The more sweeping firearm preemption laws contain onerous, punitive provisions designed to intimidate city officials from even attempting to address gun violence.

  • Under Florida’s preemption statute, for example, local officials who adopt any firearm rules or regulations are subject to removal from office and fines up to $5,000; they are also prohibited from using any public funds to defend any local public safety rules.Fla. Stat. § 790.33
  • Under a 2014 Pennsylvania law, if a city is sued over a local gun law, it must pay the legal fees and costs of the law’s challenger — even if the city repeals the law before the court issues a ruling.Pennsylvania Act 192 (2014).

The gun lobby has also supported a broad litigation campaign to punish local officials who enact gun policies.

  • The 2014 Pennsylvania law that requires cities to pay challengers’ legal fees also expressly gave groups like the NRA the ability to sue local governments. The legislation was a direct response to (and effectively reversed), several court decisions concluding that groups like the NRA did not have legal “standing” to sue cities.
  • The gun lobby group Second Amendment Foundation has initiated broad litigation campaigns against cities it claims have violated state firearm preemption laws — suing or threatening to sue hundreds of cities in states from Maryland and Virginia to Oregon and Washington.See Hannah Levintova, The Gun Lobby’s Stealth Assault on Small-Town America, Mother Jones, Dec. 11, 2013.

These relatively new preemption laws are associated with increased rates of gun trafficking: states with broad preemption laws export guns used in crime to other states at a rate more than four times greater than states that allow local control.

States that allow local regulation of firearms export crime guns at a rate of 4.4 guns per 100,000 residents. By contrast, the 42 states with broad preemption laws have an export rate of 18.2 crime guns per 100,000 residents.Mayors Against Illegal Guns, Trace the Guns: The Link Between Gun Laws and Interstate Gun Trafficking, Sept. 2010, at http://www.tracetheguns.org/report.pdf.

Preemption laws lead to dangerous and illogical results which threaten public safety. For example, local governments can prohibit knives from government buildings, but not guns. And states can and do prohibit guns from state government buildings, but cities are powerless to do the same.

In Pennsylvania, for example, the state legislature has prohibited guns in the state capitolSee Pennsylvania, Visiting the Capitol Complex, at http://bit.ly/1CaqF0e. and on the property of any state agency,49 Pa. Code § 61.3. but it has preempted local governments from regulating firearms — so cities and townships in Pennsylvania cannot prohibit guns in municipal buildings, or in any city or town hall.18 Pa. Code. § 6120.

  • Pennsylvania’s restriction had deadly results on August 5, 2013 when an armed man entered the municipal building in Ross Township and shot and killed three people and injured at least two others. Because of the state preemption law, Ross Township officials were powerless to prohibit him from bringing the gun into the building.Staff Reports, Ross Township shooting suspect: ‘I wish I killed more of them!,’ Pocono Record, Aug. 6, 2013.

Florida’s very broad firearms preemption law has also led to dangerous and illogical results.

  • Similar to Pennsylvania, guns are not allowed at Florida state legislative meetings,Fla. Stat. § 790.06(12)(a)(8). but Florida law prohibits cities, towns, and counties from passing locals laws — forcing localities allow guns in their municipal buildings and city halls.Fla. Stat. 790.33.
  • Due to the state preemption law, Palm Beach County had to rescind ordinances that kept guns out of government buildings and parks — as well as an ordinance that prohibited people from firing guns in densely populated areas.See Lizette Alvarez, Florida Forces Towns to Pull Local Laws Limiting Guns, N.Y. Times, Sept. 10, 2011.
  • And in Fort Lauderdale, it is now illegal for someone to bring a knife to a parade — but they can legally bring a gun.See Scott Wyman and Brittany Wallman, Fort Lauderdale to allow guns — but no other weapons — at parades, Sun Sentinel, Oct. 4, 2011.

Some states also prohibit public colleges and universities from setting campus firearm policy — despite the dangers of guns in environments where young people and alcohol frequently mix.

In Colorado and Oregon, the state supreme courts found that state law preempts colleges from setting their own gun policy and forces them to allow guns on campus.Students for Concealed Carry on Campus, LLC v. Regents of the Univ. of Colo., 2012 CO 17 (Co.).

Meanwhile, Mississippi, Utah, and Idaho state laws expressly prohibit colleges from adopting policies that bar guns on campus.Miss. Code Ann. §§ 45-9-101(13), 97-37-7(2); Utah Code Ann. §§ 53-5a-102(4), 53B-3-103.

In Florida, voters recognized that local gun laws should reflect local conditions — even if the state legislature does not.

In 1998, Florida voters voted to amend the state constitution to create an exception to the legislature’s broad firearm preemption law. The constitutional amendment expressly allows counties to require background checks for gun sales that occur on property with a public right of access.

The anti-preemption amendment passed with 72% of the vote.Peter Jamison, Gun-show loophole laws on the books in Florida, but ignored, Tampa Bay Times, Apr. 6, 2013.

By preventing cities from tailoring gun laws to local conditions, preemption laws threaten public safety, and defy centuries of tradition in which cities adopted stronger gun laws than rural areas.

Local law enforcement and government officials know best how to keep their communities safe. They are the ones who should determine local public safety policies, not state legislators who do the bidding of the gun lobby.

States should repeal laws that prevent local leaders from passing reasonable gun laws. If states do not repeal their firearm preemption laws entirely, they should adopt reasonable exceptions, such as:

  • Allowing local communities to require background checks on gun sales, ban the firing of weapons in densely populated areas, and prohibit guns in government buildings and other sensitive places; and
  • Allowing larger cities above a given population to adopt gun laws to protect public safety.