Guns & Ammo (and Democracy)
While preemption is not a simple concept, it is nonetheless an existential threat to progress across public health and social justice issues. Together, the hundreds of preemption bills introduced or adopted in 2020 and 2021 pose a grave threat to democracy at the local, state, and national levels. State preemption in particular is increasingly being used to crush grassroots health, safety and democracy movements.
In this issue we focus on the threat of ever more extreme forms of firearms and ammunition preemption (also known as “punitive” or “super” preemption). While those of us concerned about the erosion of voting rights have focused (understandably) on direct threats such as those in Georgia, the long-term damage to local democracy as the result of preemption is of at least equal concern. While proven gun control policies such as licensing and registration save lives and are supported by the vast majority of Americans, progress at the local level is blocked in 43 states. The following stories represent the tip of the iceberg of both adopted preemption laws and new threats. The first story reports on rare good news in repealing preemption, in Colorado:
House panel advances bill allowing local governments to pass stricter gun laws
A bad idea whose time has come (again). Pa. House panel to take up local gun preemption bill | Monday Morning Coffee
Pennsylvania Capitol-Star, 5/24/2021
Reminding us that some lawmakers are just fine with local control until they aren’t, the House Judiciary Committee is set to take up a bill on Tuesday that would force local taxpayers to pick up the check if someone successfully mounts a court challenge to a municipal gun ordinance that’s stronger than existing state law.
Zaleski: Absurdity wrapped in hypocrisy
Grand Forks Herald, 5/22/2021
Interested in absurdity wrapped in hypocrisy? Look no further than the recently concluded session of the North Dakota Legislature. While there are several examples of legislative malfeasance and outright stupidity, one that enshrines those attributes is a bill-signed-into-law that will allow gun sales in neighborhoods, even if a city had banned such sales, even if the neighborhood objects. It’s another example of legislators giving lip service to local control and then taking it away. In the case of this particularly bad legislation, majority lawmakers knee-jerked their way into a one-size-fits-all law that erodes local sovereignty and opens the door for more usurpation of the powers of governments that are closest to the governed. [Emphasis added]
Colorado Bill Highlights Importance of Preemption Laws
America’s 1at Freedom (NRA), 5/21/2021
A measure recently approved by a Colorado Senate committee would repeal Colorado’s firearm preemption law—a dangerous action that would undo the years of hard work the NRA Institute for Legislation Action (ILA) has expended shepherding such laws to implementation.
The measure is S.B. 256, which would repeal the law in Colorado that prevents localities from passing their own gun-control measures… [Emphasis added]
Commentary: American cities have regulated guns, now most can’t
Bend Bulletin, 3/26/2021
[F]or all the heated rhetoric around the Second Amendment, state [preemption] laws are a far more significant barrier to gun regulation than the Constitution. [Emphasis added]
The assault-style ban set by the municipality fell after a two-year court case, but it is sure to stoke battles nationwide over municipal attempts to pass firearms regulations that are stricter than state or federal laws.
Resources & Research
States laws limit local control over guns, favor gun rights
New York University (EurekAlert!), 5/20/2021
The majority of U.S. states have passed laws preserving state authority over firearms policies–and preventing local communities from passing their own–but at the same time have refrained from enacting statewide gun-control policies, according to a new study by researchers at NYU School of Global Public Health…
“The firearm industry was one of the first to use preemption as a tool to block public health policymaking in local areas where enacting measures would have been politically feasible,” said Jennifer Pomeranz, assistant professor of public health policy and management at NYU School of Global Public Health and the study’s lead author. [Emphasis added]
- Derek Green (Councilmember At-Large, Philadelphia; DMO President)
- Mark Pertschuk (Grassroots Change & Preemption Watch) gives presentation on 2021 preemption landscape.
- Ian Baltutis (Mayor, Burlington, North Carolina) & Lauren Kuby (City Councilmember & Vice Council Chair, Tempe, Arizona)
As the US begins recovering from a multi-year attack on democracy (especially in political swing states such as Georgia), voting rights has now joined the long list of health, safety and social issues in which legislation is being introduced and passed to interfere with local voting policies, practices, and accountability. Below are examples of this deeply concerning effort to undermine the exercise of democracy.
The States Following Georgia’s Lead on Voter Suppression
New York Magazine, 4/3/2021
[Preemption is] a hallmark of the bill that just passed the Texas Senate — much of it aimed at cracking down on urban counties that made voting easier in 2020. In the name of “standardization,” Texas Republicans (led by Lieutenant Governor Dan Patrick) would prohibit the 24-hour early voting and drive-through voting that Harris County (Houston) authorized last year. [Emphasis added]
AG files support for LA County Ban on flavored tobacco products sales
Los Angeles Daily News, 5/14/2021
Colorado Shooting Highlights Need for Stronger Gun Laws
The Progressive, 5/21/2021
The federal impasse on gun violence presents an opportunity for Colorado, and other states, to strengthen local authority to regulate firearms.
Senate Democrats pass preemption bill that allows local governments to pass stricter gun laws
Stricter gun laws in Colorado, with local control, another step closer
Colorado Senate Democrats Tuesday, over strong objections from the Republican minority, passed Senate Bill 256, a bill that lifts the state’s ban on stricter gun laws for cities and counties.
After previous attempts failed, Fort Collins voters give thumbs up to plastic bag ban
Pending state legislation may end up preempting some portions of the local law.
Democrats try again to ban plastic single-use bags in omnibus bill, but competing bill has bipartisan support
Court refuses to send gun case to justices
TALLAHASSEE, Fla. — An appeals court Monday refused to send to the Florida Supreme Court key issues in a case about a 2011 state law that threatens tough penalties if city and county officials approve gun-related regulations.
Attorneys for local governments filed a motion last month requesting that the 1st District Court of Appeal send the issues to the Supreme Court — a move known as certifying “questions of great public importance.”
But the Tallahassee-based appeals court denied the motion Monday. As is common, the court did not explain its reasons. A panel of the appeals court on April 9 upheld the constitutionality of the 2011 law, which was challenged by 30 cities, three counties and more than 70 local officials.
[T]he bill (SB 1080) would do little to curb the trend of young adults engaging in the use of e-cigarettes or other products containing nicotine, health advocates warn.
The measure, approved by large majorities in the Florida House and Senate, would authorize the Department of Business and Professional Regulation instead of local governments to regulate “the marketing, sale, or delivery of tobacco products” including vaping products such as electronic cigarettes. The measure next heads to Gov. Ron DeSantis’ desk.
Florida governor signs law preempting local COVID edicts
ABC News, 5/3/2021
Florida Gov. Ron DeSantis has moved to suspend all remaining COVID-19 restrictions imposed by communities across his state.
Bill to preempt unwritten local gun rules gets panel’s nod
Florida Politics, 4/1/2021
A bill to prevent local governments from creating their own unwritten gun policies is on to its final House panel.
In 2011, a new Florida law gave citizens the right to sue and collect against local governments for violating the preemption statute. It also provided for fines and potential criminal prosecution against members of county commissions and municipal entities …
Now, the revised bill signed into law provides for penalties against local governments who have either written or unwritten rules, orders, or policies that violate the ban against local gun laws. And it allows a citizen to recover up to $100,000 in damages, even if the local law is changed after a lawsuit is filed. [Emphasis added]
050321-Letters: Protect our youth from smoking and vaping
Florida Times-Union, 5/3/2021
Preemption of local control over the sale and marketing of these products by communities is the tobacco industry’s highest priority. SB 1080 and HB 987 would preempt local government from passing necessary local tobacco retail licensure ordinances that would save lives by reducing tobacco use. [Emphasis added]
An omnibus bill, HF 756 also makes the permit to acquire handguns optional… and expands the state’s preemption law by adding “carrying” to the list of actions that localities are prohibited from regulating. [Emphasis added]
The Elbert Files: K.C.’s long view
Business Record, 5/14/2021
“Republicans used to be the party of local control,” K.C. continued. “But this year, they overruled local school boards and punished school administrators who used their best judgment about the pandemic and held online classes to protect the health of their communities.
Maine: Senate to Vote on Ban of Self-Defense at Polling Locations
Legislative Document 805 takes the first step in eliminating Maine’s current firearms preemption law by allowing municipalities to impose an almost total prohibition on the possession of a firearm in a “voting place.” The bill effectively creates a gun-free zone not only in the actual “voting place,” but prohibits possession within a 250-foot zone of the entrance, with limited exceptions.
Point/Counterpoint: Local journalists now grappling with ‘all politics is national’
Duluth News Tribune, 5/14/2021
Local reporters used to be shielded from the national political discourse, in part because municipal elections typically don’t include Rs or Ds next to candidate names — and even when they do, as the saying goes, “There is no Democratic or Republican way to fix a pothole.” [Emphasis added]
Letter to the Editor: Response to Tobacco 21 bills in legislature
The Missouri Times, 4/2/2021
When it became apparent in late 2019 that President Donald Trump would sign the bill that included a provision for raising the minimum age to purchase tobacco to 21, the industry placed a high priority to get local preemption bills passed in state legislatures. [Emphasis added]
Guest column: Montana’s reckless legislative session lowered the bar
Bozeman Daily Chronicle, 5/15/2021
Our state Constitution proclaims equality of opportunity and blessings of liberty, yet this far-right-controlled legislature stripped civil liberties from women, LGBTQ and trans people. It removed local control for firearms, clean indoor air, carbon, affordable housing zoning, and sanctuary cities.
Flurry of New Hampshire House bills takes aim at municipal authority
NH Business Review, 5/4/2021
The most contentious piece of legislation, H.B. 307… would add an enforcement mechanism for towns and municipalities that ignore the state legislature before enacting any regulation on firearms in their localities.
In New Hampshire, the state currently holds preemption over localities in regard to firearm ordinances… [Emphasis added]
New Hampshire: Senate Judiciary to Vote on Pro-Gun Bills Next Week
House Bill 307: Over recent years, numerous local governments have attempted to enact gun control ordinances in violation of the current state firearms preemption law, putting law-abiding gun owners at risk. This piece of legislation aims at strengthening New Hampshire’s preemption law to protect New Hampshire gun owners. Further, HB 307 allows anyone adversely impacted by an ordinance or regulation to file suit against the county, city, town or government entity that enacted the violation (after notice is given).
New Hampshire: House to Vote on Pro-Gun Bills
House Bill 307:… This piece of legislation aims at strengthening New Hampshire’s preemption law to protect New Hampshire gun owners. Further, HB 307 allows anyone adversely impacted by an ordinance or regulation to file suit against the county, city, town or government entity that enacted the violation (after notice is given).
Under the new law, “a political subdivision, including home rule cities or counties, may not enact a zoning ordinance or other ordinance relating to the purchase, sale, ownership, possession, transfer of ownership, registration or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void.” [Emphasis added]
The session focused on McCuskey’s research about how states could pursue their own single-payer programs despite ERISA’s preemption of state laws relating to employer-sponsored health benefits. McCuskey has published articles on the subject in the Penn Law Review and in Health Affairs with co-author Erin Fuse Brown.
EUGENE, Ore. – The city’s Ad Hoc Committee on Police Policy will recommend an overhaul on Eugene Police policy on crowd control…
The committee will also urge city leaders to make Eugene a “no open carry” zone to discourage the presence of firearms.
“No person or organization in any public space within the City of Eugene city limits shall possess or control any firearm, unless the person or organization holds a valid concealed handgun license, issued by Lane County Sheriff, for the firearm,” according to the report. “Concealed carry licenses issued by other jurisdictions are not valid.” [Emphasis added]
Oregon Anti-Second Amendment Bill Awaits Governor’s Signature
America’s 1st Freedom (NRA), 5/16/2021
In its initial iteration, the bill would have gutted Oregon’s preemption statute by allowing localities to dictate how law-abiding gun owners can exercise their rights. Without preemption, these localities could then create a patchwork of confusing and inconsistent firearms laws that would criminalize law-abiding gun owners, and would make the exercise of citizens’ constitutional rights functionally infeasible.
With Gun Buybacks, Philadelphia Fighting Uphill Battle
The city netted 353 firearms in two buyback events this year… But despite City Council President Darrell Clarke calling them “relatively successful,” research shows these events largely do not work at reducing gun violence.
Philadelphia officials have also been hamstrung by Pennsylvania’s preemption law…
“Unfortunately, at the local level, we’re sitting here having productive gun buybacks because we’re limited by the state and the federal government to do much, much more as it relates to a legislative solution,” Clarke said. [Emphasis added]
Pittsburgh likely to consider single-use plastic bag ban this summer
Pittsburgh Post-Gazette, 5/4/2021
In an effort to reduce plastic pollution, Pittsburgh is exploring regulations on single-use plastic bags and is eyeing joining other municipalities in suing the state for thwarting local bans on the ubiquitous retail staple.
Pittsburgh supports Philadelphia in lawsuit against state Firearm Preemption Laws
Pittsburgh city officials this week threw support behind a lawsuit filed last year in Philadelphia challenging Pennsylvania’s Firearm Preemption Laws, alleging they keep the city from combating gun violence and “have forged a state-created danger.”
Gun Owners of America Sue Philadelphia Over Ban on Unfinished Frames
PA Code Title 18, Section 6120 creates preemption in Pennsylvania. The law explicitly prohibits localities from making their own gun laws. Philadelphia has ignored the law and has lost in court three times trying to defend laws that run afoul of the State statute.
South Carolina Governor Bans Mask Mandates
Scores of chicken operations like these have sprung up in west Tennessee in just the past three years, proliferating as Republican lawmakers have led successful efforts to remove environmental oversight and hamstring local officials from enforcing public health rules, while the administration of Gov. Bill Lee has offered millions in economic incentive packages for Tyson’s meat processing plants. [Emphasis added]
Smoking ban in city parks, playgrounds makes safe sense
Citizen Tribune, 4/2/2021
Two years ago, the state gave cities and counties authority to ban tobacco products in playgrounds, but that legislation didn’t go far enough. Tobacco products may still be used elsewhere in parks, and vaping products were not included. [Emphasis added]
Courthouse News Service, 4/1/2021
SHERMAN, Texas — The city of Dallas’ paid sick leave ordinance is preempted by the Texas Minimum Wage Act, a federal court in the state ruled. The ordinance required employers in the city to provide employees with one hour of paid sick leave for every 30 hours worked.
A Ninth Circuit Panel Finds No ERISA Preemption Of Seattle Health Care Ordinance