Concealed Carry & Home Defense

CCW Weekend: Legal Preemption And Why It Matters

Guns and Gear Contributor
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By Sam Hoober, Alien Gear Holsters

A legal issue regarding concealed carry and Second Amendment rights is the issue of preemption and the implication of preemption laws. Preemption is a legal doctrine establishing the primacy of one legal body over another when it comes to a particular matter at law.

Preemption has to be codified at law, or in other words there has to be a law on the books declaring preemption in favor of or against a particular body. Often enough, the way it works is that a larger body has a preemption law declaring that a smaller body can’t pass a law contravening a law of the larger body, sometimes about a specific issue.

Normally, it’s at the state level. A state government passes a hypothetical law saying “our law about X can’t be undercut or gotten around by city governments, so too bad if they don’t like it.” There is federal preemption in some instances, but federal preemption is also somewhat restrained by the 10th Amendment, as those rights not reserved to the federal government are reserved by the states or the people.

Preemption of concealed carry laws, of course, is and should be of great interest to concealed carriers and those who value the rights of law abiding citizens, especially those concerning firearms.

Gun purchases do have some federal pre-emption, such as background checks and firearms restricted by the National Firearms Act. Concealed carry and open carry, however, don’t really have much regulation at the federal level, outside of a few minor bits of federal law like the Law Enforcement Officers Safety Act and federally-mandated gun free zones like prisons and federal buildings, though schools – per federal law – are not actually gun-free zones for people that have a valid concealed carry permit. State law, however, is another matter on that score.

As a result, the issue falls to the states.

State preemption laws regarding concealed carry have been a constant tug-of-war between municipal governments and state governments for years. Some cities, after all, are havens for gun control advocates and from time-to-time, they will pass concealed carry measures over and above state regulations. Often enough, city councils will insist that a person getting a license and carrying in a gun holster isn’t enough; they want to regulate the type of pistol a person can buy or where they can carry along with everything else.

For instance, the city of Missoula, Mont., passed a universal background check law for that city in late 2016, requiring background checks be done for nearly any transfer of a firearm from one party to another. Whilst a law of this sort is not unprecedented elsewhere, it is more stringent than the laws for the rest of the state. This prompted Montana’s Attorney General to issue an opinion on Jan. 26 2017, according to the NRA-ILA, that the law was in violation of Montana’s preemption statutes regarding firearms and is therefore unenforceable.

The city of Knoxville, Tenn., ran into an interesting dilemma recently, according to Guns.com. Chilhowee Park is owned by the city of Knoxville, but is administered by a third party for private, ticketed events such as the state fair, exhibitions and other events. The city passed a law completely forbidding concealed carry within the park. However, since Tennessee law doesn’t allow for banning carry in public parks, the city has had to revise the law so that concealed carry can be prohibited during ticketed events, since they are essentially private in nature. At other times, concealed carry is allowed in some areas.

States have at times struggled with passing preemption laws preventing municipalities from enacting gun control statutes in excess of state regulations. Pennsylvania’s preemption law of 2014 was struck down by court decision, but a new version was introduced to the legislature last year. A preemption law is currently in the works in Nebraska as well, according to the NRA-ILA, among other states.

While it’s all well and good to discuss various laws and lawsuits related to something we care about, the issue of preemption is not unrelated to the idea of national reciprocity. Municipal governments, when unchecked by preemption laws, have the power to make something a crime in one area where it might be completely legal in another. This means otherwise law-abiding citizens outside of city limits can become criminals once they enter them, just like how law-abiding citizens in one state become felons once they cross an invisible line.

While certainly some variance in city ordinances is necessary, proper and to be expected, making criminals out of visitors or new residents is not.

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Sam Hoober is Contributing Editor for AlienGearHolsters.com, a subsidiary of Hayden, ID, based Tedder Industries, where he writes about gun accessories, gun safety, open and concealed carry tips. Click here to visit aliengearholsters.com.