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Analysis: The New Frontier in State Preemption Fights [Member Exclusive]

After decades of stalemate at the federal government level, the debate over gun laws has shifted increasingly to the local level. As a result, state preemption laws and attempts to circumvent them have become all the more relevant.

As a response, two divergent and novel approaches to the issue of preemption have emerged in recent months. They could set a pattern for other states on either side of the issue to follow.

Colorado is an example of the first approach. In the 2021 legislative session, it became the first state with a firearm preemption law to repeal it. Since then, the city of Denver has been able to pass a ‘ghost gun’ ban and there’s now talk of the city of Boulder—the city that led the charge for the preemption repeal in the first place—reinstating its assault weapons ban and magazine capacity ban, among other moves.

Other states with secure Democratic majorities could choose to follow the Colorado blueprint in repealing firearm preemption now that it is no longer an unprecedented move. That would open the door for more local gun control with less legal recourse for gun-rights activists to push back.

The other approach, taken by states with more gun-friendly legislative majorities, has been to introduce legislation bolstering preemption laws with civil penalties for local governments who violate the law by passing restrictive local ordinances. Think of it as a preemption statute with teeth.

Bills of this nature are currently working their way through the legislatures of both Pennsylvania and New Hampshire.

In New Hampshire, House Bill 307 would change the state’s preemption law by allowing any New Hampshire resident who is affected by a local ordinance restricting firearms, accessories, ammunition, or knives to bring a civil action against the local government that passed the ordinance. They would be entitled to a civil award, as well as have their court costs covered, if the legal challenge is successful.

The bill passed the state Senate on Wednesday, and currently awaits a vote in the state House. A different version of the bill has already passed in the House, but each body needs to pass the same language before it gets sent to the governor.

The Pennsylvania bill, House Bill 979, would give legal standing to any Pennsylvanian affected by a local ordinance passed in contravention of the state’s preemption law. This would allow them to challenge the ordinances in court whether or not they have been charged under the new law. The bill would essentially codify into law what the Pennsylvania Supreme Court has already ruled in an October case challenging the local gun-control ordinances in the capital city of Harrisburg.

The bill would also allow citizens who successfully challenge local gun ordinances to collect damages and recoup court costs for their efforts.

Pennsylvania, perhaps more than any other state, has seen high-profile fights over state preemption throughout the years. Major cities like Philadelphia, Pittsburgh, and Harrisburg routinely attempt to pass restrictive gun laws despite the existence of a long-standing preemption statute. Even though the laws are regularly struck down in Pennsylvania courts, the cities continue to fight for ways to pass local regulations.

Versions of the bill have passed in both the Pennsylvania Senate and House, but, with Democrat Tom Wolf currently occupying the Governor’s office, it won’t have a shot of becoming law before the next election. Momentum for such a law to continue in future legislative sessions.

We are still in the early stages of this development. However, with local efforts to regulate guns becoming increasingly common, expect advocates on either side of the issue to continue finding creative ways to achieve their goals moving forward.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Dennis Hannick
Dennis Hannick
13 days ago

VA Democrats crapped in the bed with their legislation to basically repeal VA’s preemption law. Hopefully, with the retaking of the House of Delegates and the governorship by Republicans, we’ll be able to reverse the reversal. What is needed is not a preemption law. It needs to be a state,… Read more »

Stephen Gutowski
Admin
11 days ago
Reply to  Dennis Hannick

That’s an interesting approach. A constitutional amendment would certainly be more powerful. It would also be harder to pass. But, fair point.

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