Preemption Laws and the Use of Firearms and Ammo

There is a lot of discussion now in our states, cities, and counties and at the federal level about Preemption laws and relationships among and between Federal, State, and city/town/municipal local laws regulating firearms and ammunition. There are certainly several issues and pros and cons to consider. So what is Preemption about? “Preemption” generally means that a higher level of government has removed regulatory power from a “lower” or subdivided-local level of government, regarding something like handguns and ammo, as examples. This is usually based on a higher priority need to accomplish a standard and proper goal or to implement an accepted, moral or legal right or privilege. Although there are some exceptions, our U.S. Congress has NOT specifically preempted state, city, or local laws controlling firearms and ammo. The latter have, for a large part, their own authorities and regulations. Federal preemption of state law is very uncommon historically in firearms and ammo regulation, even though some individuals want it. But, recognize that under the Supremacy Clause of Article VI of our U.S. Constitution, a federal law is binding on all state and local governments, as long as Congress duly enacted it with its powers. So, this is not a unilateral decision by any President or solitary government individual or representative.

Our states differ significantly in how and the extent they preempt firearm and ammo regulations, based on existing state case law. Although in constant flux, there are currently 43 states that have enacted preemption laws to retain authorities. While most state constitutions usually grant authority to local governments to regulate matters of public health, safety, and welfare, most states have specifically removed authority from city and local governments for regulating guns and ammo and retain that responsibility at the state and federal levels. The idea seems to be a more centralized and standard approach to regulating the right to keep and bear firearms according to U.S. and State Constitutions, without variations and subjective interpretations among different local communities. Centralized, preemptive regulation with similar standards and enforced rights for all. There are considerations, advantages and disadvantages for preemption. Some say heavily-populated city-county areas may require different considerations and priorities than rural, less-densely populated areas. Others say that is the vary reason there needs to be a standard approach and protection of rights for everyone, regardless of where they live and the population. For example, there may be a state preemptive right to specify the legal carrying of concealed handguns in all state and public parks, with no local opportunity to deny the right. Some states have compromised the mandatory preemptive regulation with an opt-out provision for local governments for certain subjects of regulation. In a few states, there exists opt-out provisions in local carry ordinances to prevent carrying a concealed handgun in all public parks, for example. In essence, this opt-out provision overrides the state’s preemption regulation and opens up this right to carry to being disallowed locally. Also, for a few states without preemption statutes, local governments may impose additional requirements (and costs) on their community’s gun dealers for things like expanded employee background checks, operating hours, and mandatory on-site security systems. Of  course, this varies significantly among states and locales. So, know your state’s preemption laws and local ordinances, which may differ. Remember, if there is no specific, irreconcilable conflict between a challenged state or local firearms or ammo law and a federal law, there is no federal preemption of any state or local law.

Practically then, how do federal and state preemption laws affect us and our guns and ammo. This varies significantly among states and local jurisdictions. Know yours! There are pending laws about shooting your gun in your own backyard and whether or not it is legal to do so and what jurisdiction or law governs it. What if you test fire your gun into the ground of your own fenced backyard and residence. Can you be arrested and charged for that? Can you legally fire your gun in self-defense in your own fenced backyard of your residence? Are there limits to firing your gun on private property? If so, what are they? Can you fire your gun in self-defense on the street by your residence? Is your backyard considered to be public or private property? What about Federal, State, and local city, county, or municipal ordinances and laws? So many questions, differences, and uncertainties. Does Federal law supersede your State law about firing your gun? Does your State law supersede your City/Town/County/Municipal law about this?

Currently, there are five states that have NO law or statute expressly preempting city and local regulation of firearms and ammo. They are New York, New Jersey, Massachusetts, Connecticut, and Hawaii. In these states, without a direct conflict with state law, local regulation is possible. The Supreme Judicial Court of Massachusetts and a similar court in New Jersey upheld local firearm discharge bans, finding that they did not hinder their state’s hunting license law even though they were more strict than state law about the use of firearms. Other states permit broad regulation of firearms and ammo at the local level, but preempt local regulation of just certain aspects, e.g. in California and Nebraska. Here local governments retain authority to regulate firearms and ammo, but the state legislature has expressly removed this authority in a few areas. This week in California, for example, there is a state Bill to legally consider rifles without fixed mags (or those with a Bullet Button) that have a capacity of 10 rounds or less to be “assault weapons” that must be registered with detailed data and which require a Fee (tax). This will affect millions there. Now 43 states have enacted broad preemption statutes where local governments have limited authority to regulate firearms and ammo.

So it is not enough to know the state laws that apply, you must know the local laws that apply in your area and for what subjects. Most of us, including this author, are not trained lawyers and cannot give legal opinions or legal advice and often find it complex to deal with the legalities of shooting and carrying our guns and the use of deadly force, among our various jurisdictions. But, there are some things we generally need to know to safely and legally defend ourselves in our particular state, jurisdiction, and all states we might visit. Sadly, we must recognize that any time we use a gun to defend ourselves, we run the risk of legal trouble. Any use of a gun in a self-defense situation can be considered deadly force, whether we press the trigger and shoot someone center mass, fire a warning shot into the ground, or merely exhibit or brandish a weapon. Once a gun is involved, deadly force is involved and we must know the general rules of the situation and the particular laws of where we happen to be. Does preemption exist in this particular state and for what and to what extent? This is a complex and challenging reality, if we are traveling through or are staying over night in a particular state. We must know the universal truth that deadly force can only be used when we are faced with deadly force, meaning force which can put us in danger of death or great bodily harm.

Historical wisdom tells us to avoid confrontations if at all possible. Not only for avoiding possible personal danger or harm, but also for avoiding legal hassles, wasting time, and costs. We are responsible for every round that leaves our muzzle and often must prove that we took a justifiable shot and used deadly force appropriately. This does not mean we are weak, powerless, cannot handle ourselves, do not have the handgun shooting skills, or are afraid. It is rational behavior; if we can retreat or exit safely, we should. Some do not recognize that “retreat” is a strategy that may be appropriate for an encounter, as well as the strategy of “attack and advance.” We must know when to employ the appropriate strategy. I remember reading and studying at the Air Force’s Air War College many years ago The Art of War. This classic book was written in the late sixth century BC by a Chinese military strategist, General Sun Tzu. The Psychological Operations book I wrote for Special Ops and Air University in 1996 includes some of his strategies. One of his major strategic beliefs that he employed successfully in battles was that “The supreme art of war is to subdue the enemy without fighting.”  It makes sense to me to AVOID any fight first, if you can. It does not mean you are weak or a “woosy.” You win the gunfight by not being in one. Certainly, this applies to military warfare, as well as personal protection and self-defense. In your personal protection and the justifiable use of deadly force, you should seek to avoid confrontation, unless you have no choice and your life is on the line. This is even more true with preemption laws and differences among states and jurisdictions.

With all these above things in mind, I must relate to what I know best and my state of Florida, as an example. Can I legally shoot and test fire my gun into the ground of my own backyard of my residence in Florida? The gun law that regulates discharging a firearm on public or residential property is Florida Statute 790.15, which states in part (my underlinings and boldings):

(1) Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street, who knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises, or who recklessly or negligently discharges a firearm outdoors on any property used primarily as the site of a dwelling as defined in s. 776.013 or zoned exclusively for residential use commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section does not apply to a person lawfully defending life or property or performing official duties requiring the discharge of a firearm or to a person discharging a firearm on public roads or properties expressly approved for hunting by the Fish and Wildlife Conservation Commission or Florida Forest Service.

So this state law says it is illegal to fire a gun in a public place or on or over paved public roads or  shoot your firearm over any occupied premises or residential dwelling.  I MAY be able to fire my gun on my private property where I live, BUT there are limits and I must be aware of my surroundings. I must use care when operating a gun and not act negligently or recklessly when firing my gun wherever I shoot it, following the above accepted legal parameters… and the local ordinances may interpret my “care” and negligent or reckless actions. It is important to note that FS 790.15 specifically states that this law does NOT apply to those acting in self-defense. Under Florida’s self-defense laws and those similar ones in most states, you may use “reasonable” force to protect yourself. Of course, this is very subjective and the situational factors must be considered. This also means in limited situations you may be able to shoot your gun in an area which would not usually be permitted. Bottom line: This is subjective and open to interpretation, depending significantly on the situational variables, state law, and local ordinances. Use caution, safety first, and know the laws of your state, county, city, and jurisdiction.

Note that this law also mentions discharging a firearm in a public place. So what is considered a public place, per FS 790.15? Well there was a major Florida case that dealt with this issue in 1997, C.C. v. State, 701 So. 2d 423, 424 (FL 4th DCA 1997.) The Appeals Court was presented with the issue of whether a residential community backyard was considered a public place, when someone fired a round into the ground of a fenced backyard of a residence. The man was arrested and charged locally with discharging the gun into the ground of a residence. The state court ruled that it was NOT a public place and the charge was remanded for correction. The state law preempted the local law.

Well, I hope this brief presentation of preemption has helped your basic understanding of the complexities involved. It probably has raised more questions for you about it in your state, county, city, and jurisdiction. It would be nice and simple if there were concrete, universal, clear-cut answers. My intent was to get you thinking about this and to spur you to action to do your own research for your specific location and situations. I hope it helped.

Continued Success!

Photos by Author.

* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you establish your own criteria based on your personal needs, goals, purpose, and priorities. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.