Local Regulation of Guns

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)].”)