Crossing the Line – Firearm Preemption Protection Under Attack

Gun control groups are fond of describing preemption as a doctrine whereby a state has stripped local governments of their power to regulate guns. In fact, under established legal principles, localities are subordinate “creatures of state law,” with no inherent rights or powers other than what a state decides to delegate to them through statutes or charters.

Although some local governments may be delegated an authority to regulate public safety and welfare (“police power”) as broad as that exercised by the granting state itself, this power retains its essential character as delegated authority and is limited both by the corporate boundaries of the locality and any restrictions on its exercise that may be imposed by the state.

State preemption laws have been enacted across the nation to block local governments from passing laws on labor and employment, taxation, and many other issues of sufficient importance to require consistency and justify a uniform policy approach across the state.

For example, half of all states have some form of preemption on local minimum wage laws; 19 states likewise preempt local governments from imposing mandatory paid leave laws; over 40 states have limitations on how local governments raise revenue or assess or spend taxes; and more than 40 states have laws that prohibit localities from enacting laws restricting firearms, ammunition, and firearm components.

The tradeoff for withholding this local legislative power is equalized laws throughout a state, which means individuals and businesses don’t have to navigate a variety of conflicting regulatory schemes that change with each municipal or county boundary. In the case of firearm preemption laws, these ensure that fundamental Second Amendment rights are not diluted or distorted through controversial local policies. As NRA-ILA executive director Chris Cox has noted, firearm preemption laws protect gun owners “from harassment by an unreasonable and confusing patchwork of municipal gun laws… so that the state legislature, rather than every town, village, and burg, has the sole ability to control state police powers that are clearly of general concern.”

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