Firearms Preemption

Introduction

Preemption is the process where a higher level of government revokes the regulatory ability of a lower level of government. Such action may seem prohibitive for local lawmakers, but with topics such as firearms and ammunition, a policy of preemption is beneficial, keeping responsible gun owners from having to account for a confusing patchwork of local regulations.

Historically, firearms preemption has faced opposition in large metropolitan areas. Local officials cite the differences between rural and urban areas as the reason for needing to repeal firearms preemption, but this “repeal and replace” process only serves to limit the powers of the Second Amendment and create disparity within a state with regards to the types of laws to which residents must adhere. This is perhaps the most important principle of preemption – the equal distribution of the law. Keeping firearm and ammunition regulations at the state level prevents discrepancies from locality to locality. This ensures that all gun owners in a particular state have equal rights, regardless of location. Firearms preemption not only provides equal treatment for gun owners throughout the state, but also eliminates the risk of committing a crime by crossing a county or municipal boundary. In states without firearms preemption statutes, individuals must understand the intricacies of firearm laws in each jurisdiction, and failing to do so could lead to otherwise responsible and law-abiding gun owners accidentally violating local ordinances. For example, Illinois, Indiana, and Ohio all have local ordinances that restrict magazine capacity differently than the state statutes. Firearms preemption is essential to creating uniformity in the law in order to protect gun owners from unknowingly taking on legal risk.

Points of Interest

• Prior to the start of the 2019 legislative session there were 43 states with firearm preemption laws.
• In 2019, both Oklahoma and Texas passed firearms preemption legislation.
• New York, New Jersey, Massachusetts, Connecticut, and Hawaii have absolutely no laws related to firearms preemption.
• In 2020, West Virginia passed WV S 96 which prohibits municipalities from limiting the rights of people to purchase, possess, transfer, own, carry, transport, store or sell firearms.
• In 2020, Iowa passed House File 2502 which broadened firearm preemption to include firearm attachments in the prohibited regulatory activity of political subdivisions of the state, where it is otherwise lawful under current state laws.
• In 2023, Texas passed HB 3137, which strengthened preemption in the state, and the Wyoming legislature passed SF 148, which enhanced the state’s firearm preemption laws.

Language

The following language is found in successful firearm preemption legislation.

• Washington RCW 9.41.290: “The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.”
• Florida Statutes Chapter 790.33: “Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.”

Moving Forward

It is recommended that legislators explore and support firearm preemption legislation in their state to ensure the ability of responsible gun owners to carry and use these important sporting tools so this ability is not infringed upon by burdensome local legislation. If states are able to pass legislation that clearly defines a firearm and firearm preemption, responsible gun owners will not be threatened by outdated or restrictive laws. Additionally, in states with existing firearm preemption laws, it is recommended that legislators update their existing laws to ensure adequate protections are in place. Examples of updating and broadening preemption could involve firearm accessories, which would include items such as magazines, suppressors and optics.