Federal or State Preemption on Gun and Firearms Rights

What It Means and How It Applies In the States To Firearms

Federal or State PreemptionIn recent years, there has been a coordinated national effort by lobby groups like the NRA and Gun Owners of America to get state-based legislation passed. This is in addition to bringing suits to address specific cases where egregious wrongs and gross breaches of the right to keep and bear arms.

This is pretty remarkable as these lobbies have remained true to their more central mission of maintaining strong lobbies in Congress for federal matters impacting gun ownership. They have done well on all accounts.

In fact, for the most part, these campaigns have been successful and addressed problems that reoccur and are substantively the same in multiple states; or they have focused on areas of state law insufficient to meet the daily needs and will of the citizenry. At a minimum, they have helped educate the citizenry on the merits of the issues at hand.

Two of these lobby focuses spring to my mind: the Castle Doctrine and bring-your-gun to work bills. Now, in the recent past–the last year or so and continuing to present – there has been a key focus on state-based preemption of firearms law.

Realistically speaking, preemption of firearms laws could occur by the Federal government and exclude the states’ ability to pass firearms law or the federal government could share power with the states, with the states preempting local units of government from adopting firearms rules, regulations and ordinances.

Congress has specifically declined to pre-empt the firearms field and shares joint law-making with the states. However, Congress could attempt to pre-empt this field under the Commere Clause because firearms move in interstate transport.

This seems unlikely, under the present state of the law, it is only where there is a direct and positive conflict with state law that federal law controls by statutory enactment and the Supremacy Clause.

With state-based preemption, the issue becomes who decides about firearms law. As a general rule, only a state body can adopt penal laws. However, a maddening array of local ordinances exist in many jurisdictions that effectively make gathering and following these ordinances impossible and impede the right to carry and otherwise purchase and possess firearms, although the penalties are generally civil, and amount to confiscation and fines.

As with the tension between federal and state authority, this same tension exists between state and federal government. Under common law imported into the states, a concept of “home rule” came from our English heritage. With this rule, local governments were only able to regulate uniquely local matters, in the absence of a specific grant of statutory authority by the state legislative body.

However, in the last few decades, state legislatures have repealed home rule in some fashion. Or local governments have ignored their limitations and passed ordinances and rules beyond their authority, particularly as it relates to issues of political sensitivity, such as firearms.

Indeed, many local governments, even when challenged, simply refused to comply because there is little incentive or litigants to sue, either due to standing issues or the fact there was no clear way to recover attorneys fees if they prevailed (the American Rule is in the absence of a statutory authorizing payment of fees to a prevailing party, each side pays their own fees).

Even where attorney fee recovery provisions exist, they typically exclude recovery against governmental units. That has changed with the more or less uniform state preemption statutes that have been introduced into legislation in recent months. These only allow local governments to regulate in very narrow circumstances, and were fought tooth and nail by the groups representing local government.

In Indiana last legislative session, I had the opportunity to be heavily involved in Indiana’s state preemption bill, Senate Bill 292 introduced by Freshman Senator Jim Tomes. I was counsel to several individual and groups who advocated the bill and what any given change or alternation meant in practical terms.

From this, and in particular, knowing so much about Indiana firearms law, I was able to testify in the Senate and also before a conference committee about the benefits and detriments of proposals, to harmonizing the language of the Senate version with the similar House version that passed. Last minutes changes are red flags because the limited amount of time to consider them and the permutation of application may ultimately lead to unforeseeable consequences later when it came down to applying the bill.

Ultimately, a strong version of the bill passed, greatly drawing back the power from local governments to regulate firearms. This had already been happening since the passage of the Stafford Act, following Hurricane Katrina, which prevented any law enforcement agency receiving federal funds from confiscating lawfully possessed weapons in the time of included disasters, so as not to leave law abiding citizens with a means to protect themselves when emergency services are slow or non-existent.

Using Indiana again as an example, several divisions of local government have elected not to follow the preemption statute (on firearms), or indicated they will not, and the law suits have been filed. The question is how strongly the attorney fee provision will be enforced as tens of thousands in legal fees amass as the cases work their ways through the legal system.

In the meantime, this creates a serious issue for persons who live in those units of local government insofar as to follow ordinances declared null and void by the General Assembly effective July 1, 2011 or following them to avoid being a test case and spending years embroiled in litigation.

Ultimately, there are four (4) important concepts to pull from this blog post:

  1. First, state-based preemption takes away the ability and power of local government to regulate firearms in any capacity, except as specifically provided for. This removes a great layer of complexity, as local government rules and ordinances are very difficult to locate.
  2. Second, for these preemption laws to work, they must be clear and considered by someone without a legal agenda who can advise proponents about the potential application of changes.
  3. Third, preemption statues have little effect without an attorney fee provision, because the local government can simply ignore them if there is no ability for an aggrieved citizen to sue and recover fees. The cost is too great. That is a key point to look for in any preemption bill.
  4. Fourth, and finally, the federal government has declined to preempt the firearms field, and appears unlikely to do so at foreseeable time in the future.

This is the wild west of lawmaking, and frankly, local governments resent it and fight tooth and nail against preemption. It is hoped this blog post will help you educate yourself about preemption so that you can be an informed and participate in any dialogue about preemption bills in your state. If so, the education point of these blogs has been satisfied.

This blog post is written for GST (www.gunshowstoday.com) by Bryan L. Ciyou, attorney at law, Ciyou & Dixon, P.C., who practices in Indianapolis, Indiana. It is intended for general education purposes.

Disclaimer/Warning: This Blog is not intended to provide legal advice nor a solicitation for legal representation. Specific questions relating to preemption and how it may apply in your situation should be directed to knowledgeable counsel in your state of residence.

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