Preemption Laws and Gun Control

Part One - Preemption

When I first learned about Florida Statute 790.33, the law that prohibits local governments from enacting their own gun regulations, I thought it should be unconstitutional for several reasons. First, the student shooting at Marjory Stoneman Douglas High School in February 2018 might have been prevented. There were people who knew the shooter was a threat but there was no local resource that legally could get involved.^[1]

Back in the 1800’s, small towns in western states and territories had their own gun ordinances.^[2] Why should a right those towns had back then be lost? Statute 790.33 is also by modern western standards draconian: any local official who enacts a law deemed in conflict with the statute may be fined and removed from office.^[3]

A little research revealed that there is a preemption doctrine derived by the Supremacy clause, Article VI, in the U. S. Constitution,^[4] and a rule Courts traditionally applied, called Dillon’s rule, which asserts that a “municipal corporation’s” powers are wholly subservient to the state. As recently as 1978, the U.S. Supreme Court affirmed “that local governments have few constitutionally protected rights against the state and that citizens do not have a constitutional right to local government.”^[5]

Federal laws pertaining to public health, safety, and the environment have until recently specified Floor preemption, where states are allowed to enact regulations that are more stringent than federal law. For example, the federal Clean Air Act has a savings clause that provides a “waiver” for state laws that are “at least as protective of public health and welfare.”^[6] In contrast, more recent federal laws have specified ceiling preemption, where states cannot enact their own more stringent regulation.^[7]

In addition, there is expressed and implied preemption, and preemption can be further divided into conflict and field preemption. An expressed preemption law has provisions that explicitly lay out what is being preempted and its scope may be quite broad.^[8] Florida Statute 790.33 is an example of expressed preemption in the field of firearms and ammunition.

In 1968 the Florida constitution was revised to grant its cities and counties the right to enact its own codes and ordinances without state permission.^[9] This is called “home rule.” It’s supported in various degrees by most states. The intent was not to create independent city states and in many cases Dillon’s rule still applies.^[10] This is understandable. States should have the right to preempt bad local laws. But is the local law really bad, or are state politicians using preemption as a cudgel to keep local municipalities in line with their own ideologies?

Looking at the local ordinances that have been preempted in recent years, arguments can be made either way. Must developers install fire sprinklers in new one or two bedroom homes when there is a state regulation that requires smoke detectors?^[11] What about a local ordinance that forbids a car from backing into a public parking spot? What’s wrong with backing into a parking spot? But as long as the parking lot has signs that are clearly visible, the state doesn’t need to be involved. Let the voters decide to remove the ordinance.

Florida’s preemption of local ordinances that ban plastic bags are in my view especially problematic.^[12] Banning plastic bags is a grass-roots, bottom-up, effort. It takes a grass-roots effort to change behavior. And our behavior must change. Plastic waste has been found everywhere around the world, along the shore, in the deepest ocean trench, and recently in people’s poop. Furthermore, reusable shopping bags are cheap. The only financial loser is the plastic bag manufacturer.

To be continued.