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Preemption Protects Gun Owners

Friday, March 30, 2018

Preemption Protects Gun Owners

Many gun owners are aware of the success we’ve enjoyed with the expansion of Right-to-Carry laws across the country. Starting in 1986, when there were only nine states with Right-to-Carry laws, Florida led the way in adopting a “shall-issue” system for issuing concealed-carry permits. Now there are only eight states that do not have Right-to-Carry laws, and every state has some type of system in place for issuing carry permits.

While the story of Right to Carry is well known, many are not aware of the equally important success that we’ve had in advancing firearm preemption laws in state legislatures. These laws generally preclude local governments from enacting any additional regulations on firearms or ammunition beyond state law. Without firearm preemption, gun owners would be subjected to a patchwork of hundreds or even thousands of different sets of laws in every state. 

Such a system, where a simple trip to the grocery store could involve three or four different regulatory regimes, is a potential trap for every gun owner in America.

In fact, without firearm preemption, our wins on Right to Carry would be hollow victories. If every city, town, village or county could restrict or inhibit law-abiding gun owners’ ability to carry a firearm for defense of themselves and their families, then carrying a firearm would no longer be a right.

Anti-gun activists are acutely aware that preemption laws are all that stand in the way of their agenda in our nation’s cities. Many of our cities are controlled by politicians who would like nothing more than to enact gun controllers’ long wish list of ineffective and overbroad gun ordinances. Firearm preemption laws are the only things stopping them.

Michael Bloomberg-backed Everytown for Gun Safety has already made it its mission to dismantle preemption laws across America. In an Everytown report on violence in American cities, the group fails to mention many cities’ failure to prosecute those who commit violent crimes with guns or the lenient sentencing on those few who are prosecuted. Instead, Everytown blames firearm preemption laws for “barring cities from passing local gun laws, which hamstring them from taking any action of their own.” Which is, of course, nonsense.

Cities are free to “take action” and enforce the many state gun laws on the books. Enforcing laws that prohibit violent felons from possessing firearms and that provide enhanced sentences for offenders who use firearms to commit violent crimes would be a good start. But prosecuting dangerous criminals is hard work, and blaming crime on law-abiding gun owners is easy. Anti-gun local politicians in states with strong preemption laws would relish the authority to restrict gun owners in the same way that Bloomberg himself enjoyed during his long term as mayor of New York City.

New York is one of the few states that lacks strong firearm preemption, so New York City has been free to enact a slew of its own gun control laws. Just a few of the most egregious ordinances include a prohibition on all rifles and shotguns capable of holding more than five rounds, punitive licensing fees and an absurd requirement that gun owners who have complied with the city’s onerous processes must still receive special permission before transporting their firearms. Worst of all, even those few who are able to get a carry permit elsewhere in the state cannot carry in New York City without a special permit from the NYPD.

Anti-gun activists are acutely aware that preemption laws are all that stand in the way of their agenda in our nation’s cities. Many of our cities are controlled by politicians who would like nothing more than to enact gun controllers’ long wish list of ineffective and overbroad gun ordinances. Firearm preemption laws are the only things stopping them.

When it comes to carrying a firearm for self-defense, the city’s laws are a prime example of the abuses that a discretionary permit system creates. While law-abiding gun owners cannot exercise their constitutional rights, those who are willing to pay a “gun license expediter” often find that not even a disqualifying criminal history will stop the NYPD from issuing them a carry permit, assuming the price is right.

Just last year, several NYPD officers and a license expediter were charged for their corrupt practices in administering and manipulating the city’s licensing system. This type of official corruption is the necessary result of a discretionary “may-issue” permitting system that does nothing more than facilitate the discriminatory issuance of a permit that is required to exercise a constitutional right.

You might think that the city’s practices would be an embarrassment to the gun control movement, but Bloomberg and his front group Everytown use the Big Apple as their shining example of how a city can regulate our rights. Firearm preemption laws are the only thing preventing this “shining example” from being copied by cities across the country.

And now, the very concept of firearm preemption is under attack.

In January, a bill was introduced in Washington state to eliminate firearm preemption. The proposal would have completely repealed the state’s 1983 preemption statute. While the bill was defeated through the hard work of NRA-ILA and pro-gun activists in Washington, it serves as a warning of what anti-gun activists would like to accomplish—a complete reversal of our progress on preemption.

It’s not difficult to understand the impact of this bill if it had passed. According to the U.S. Census Bureau, as of 2012 Washington state had nearly 2,000 local governments—including counties, cities and towns. King, Pierce and Snohomish counties, three of the most densely populated counties, had anywhere from 86 to 157 units of local government within each county. Once each locality has the authority to build upon state laws and adopt its own rules, law-abiding citizens who cross an arbitrary jurisdictional line to work, shop, visit or travel will have to comply with whatever mix of firearm and ammunition restrictions the local lawmakers view as politically expedient. 

Even with the current preemption law in place, the city of Seattle tried to enact restrictive gun control ordinances. One example was the city’s decision to implement a ban on firearms in public “parks” like community centers, sports fields, playgrounds, performing art venues, and others owned or managed by the city. Washington state gun owners successfully sued and overturned the policy for violating the preemption law.

These types of egregious abuses of gun owners’ rights are exactly what started the movement for firearm preemption laws in the first place. The village of Morton Grove, Ill., banned all handguns in 1981. The move came just five years after a nearly identical law was adopted in the District of Columbia.

The District’s situation as a federal enclave was unique, but Morton Grove’s handgun ban proved to state legislatures across the country how far localities would go to trample on our firearm freedom. By the mid-1980s, many states had already adopted preemption laws. Our work on preemption was already well under way when the Right-to-Carry movement took off. 

While more than 40 states now have expansive firearm preemption laws, NRA-ILA has been hard at work improving the laws already on the books by ensuring the laws protect both firearms and ammunition, clearly cover firearm accessories and create a private enforcement mechanism to stop preemption violations.

It may seem unbelievable that local governments would knowingly violate state law just to infringe upon the rights of their constituents. However, it’s been such a widespread issue that NRA’s model firearm preemption law now includes a provision to provide gun owners and organizations like NRA the option to take local governments to court for their unlawful ordinances. To provide incentives for localities to repeal their offending laws rather than go to court, NRA’s model law also provides that local governments that lose these cases are responsible for the challengers’ legal fees and costs.

One such law was recently put to good effect in Ohio.

The Ohio Legislature adopted its firearm preemption law in 2006. It provides for uniform laws throughout the state for firearms, their components and their ammunition. The statute additionally grants those who successfully challenge local ordinances the right to recover costs and reasonable attorney fees for bringing the action.

The city of Cleveland first launched an unsuccessful lawsuit to have the preemption statute invalidated. The Ohio Supreme Court rebuffed that effort in 2010.

Nevertheless, in 2015, Cleveland brazenly enacted a slate of local gun control laws that in many cases exceeded state law. It was the very sort of action prohibited by the state preemption law. The lower courts sided with gun owners and invalidated the offending ordinances, and, at the end of January, the Ohio Supreme Court refused to hear the city’s appeal of those decisions. Now all that remains is for the lower court to award those who challenged the ordinances their costs and fees. In the future, perhaps Cleveland officials can find a better use of taxpayer funds than defending unlawful gun control laws.

Preemption is generally a battle at the state and local level, but the fight for national concealed-carry reciprocity has many similarities. Rather than invalidating local gun controls, national reciprocity would ensure that states that do not recognize the Second Amendment are nonetheless preempted from enforcing their unconstitutional laws against law-abiding concealed carriers.

That’s why NRA continues to push national reciprocity as our number-one legislative priority. That effort culminated in the best reciprocity bill yet passing out of the U.S. House last December, but we must keep up the pressure to advance reciprocity in the Senate.

Whether the fight is at the local, state or federal level, NRA will continue to pursue preemption as one of the best ways to protect our firearm freedom.

Chris W. Cox

BY Chris W. Cox

NRA-ILA Executive Director

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Chris W. Cox has served as the executive director of the Institute for Legislative Action, the political and lobbying arm of NRA, since 2002. As NRA’s principal political strategist, Cox oversees eight NRA-ILA divisions: Federal Affairs; State & Local Affairs; Public Affairs; Grassroots; Finance; Research & Information; Conservation, Wildlife & Natural Resources; and Office of Legislative Counsel. Cox also serves as chairman of NRA’s Political Victory Fund (NRA-PVF), the Association’s political action committee; president of the NRA Freedom Action Foundation (NRA-FAF), which focuses on non-partisan voter registration and citizen education; and chairman of NRA Country, an effort to bring country music artists together with NRA members in support of our Second Amendment freedoms and hunting heritage.

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NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.