Local Regulation of Guns

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Can Durham ban the possession or sale of assault rifles? In the wake of the massacre at Sandy Hook Elementary School, I have been asked several times whether gun regulations may be implemented at the local level.

Generally. Generally, the answer is no. Under G.S. 14-409.40, “the regulation of firearms is properly an issue of general, statewide concern, and . . . the entire field of regulation of firearms is preempted from regulation by local governments,” with limited exceptions. Therefore, Wilmington can’t prohibit gun shows, Boone can’t enact a gun purchase waiting period, and Greensboro can’t limit the number of firearms in a single household. North Carolina has had preemption since 1996. See S.L. 1995-727. Interestingly, the preemption bill that was initially introduced applied only to handguns. It was subsequently amended to provide for preemption as to all firearms.

Exceptions. The statute contains several exceptions, including:

  • Discharge and display regulations. Counties may regulate the discharge of guns (except for hunting and in self-defense) and the display of guns on the public roads, sidewalks and other public property. G.S. 153A-129. Cities may regulate the discharge of guns (except in self-defense) and the display of guns on the public roads, sidewalks and other public property. G.S. 160A-189.
  • Regulations regarding local government property. Cities and counties may, by adopting an ordinance and posting signs, prohibit the concealed carrying of guns in local government buildings and on their appurtenant premises, and at certain recreational facilities.

Other States. Most, but not all, other states also have state preemption of local gun regulation. According to the NRA, only Hawai’i, Illinois, and Nebraska do not have preemption by statute or case law. The extent of preemption appears to vary by state, however. The table on pages xi and xii of this Bureau of Alcohol, Tobacco and Firearms publication summarizes the preemption laws of each state. The Wikipedia entry on state gun laws provides additional information about other states’ preemption rules.

Federal Preemption. Although the federal government regulates guns extensively, federal law does not preempt state regulation. Indeed, 18 U.S.C. § 927 expressly states that “[n]o provision of [the federal gun laws] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State.” Of course, state gun regulations must not violate the Second Amendment, which the Supreme Court has recently ruled constrains state and local governments as well as the federal government. McDonald v. Chicago, __ U.S. __, 130 S.Ct. 3020 (2010) (“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in [District of Columbia v. Heller, 554 U.S. 571 (2008)].”)

2 comments on “Local Regulation of Guns

  1. Wow! North Carolina has some jacked up and inconsistent gun laws. Open Carry of any handgun should be legal across the state. There shouldn’t be defacto bans on Open Carry in towns like Chapel Hill, but not in Charlotte. It’s too confusing and inconsistent, especially for those who may want to vacation in North Carolina. Another thing that is illogical is that you can only carry concealed in NC state parks with a permit. If there’s ever a time to carry openly, I would think hiking through the woods in a state park in July while you’re hot & sweaty would be it!

    • Chapel Hill only prohibits the open carry of firearms less than six inches in overall length.

      Sec. 11-134. – Prohibition on display of small handguns.

      No person shall display, on any street, sidewalk, alley or other public property any handgun which is easily and ordinarily carried concealed.
      For purposes of this article, the term “handgun which is easily and ordinarily carried concealed” shall mean any handgun or other firearm with an overall length of less than six (6) inches; provided, however, that in the case of a handgun or firearm that does not have a handgrip, this term shall mean any such handgun or firearm with an overall length of less than eight (8) inches.
      For purposes of this article, the length of a handgun shall be determined as follows:
      As the length of a line drawn from the tip of the barrel of the handgun along the length of the barrel to the point where that line intersects with a perpendicular line drawn up from the point on the back of the handgrip farthest from the tip of the barrel; or,
      If the length of the handgun measured along the barrel extends back beyond the point where the lines described in (c)(1) above intersect, the length shall be determined by the length of the gun measured straight back from the tip of the barrel for the full length of the gun; or
      If the handgun does not have a handgrip, the length shall be determined by measuring the overall length of the weapon by a straight line connecting the tip of the barrel to the point farthest away from the tip of the barrel.
      This section shall not apply to persons authorized by state or federal law to carry firearms in the performance of their duties.
      (Ord. No. 93-11-22/O-1, § 1)

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