On November 2, an Ohio state trial court judge granted a preliminary injunction of the state’s firearms preemption statute, in a lawsuit brought by the city of Columbus. Ohio’s “firearms uniformity law” was amended in 2018, over the governor’s veto, to both preempt additional municipal actions that might “interfere with the fundamental individual right” protected by the Second Amendment—such as municipal licenses, permissions, or delays, in addition to affirmative local legislation—and to allow any individual “adversely affected” by a local gun regulation to sue. The amendment also made other changes to the state’s gun laws, including strengthening the evidentiary presumption that an individual who claims self-defense acted lawfully.
Columbus sued to challenge the expanded preemption provisions and, in a brief order, a state trial court judge recently held in City of Columbus v. Ohio that the preemption law violates the “home rule” amendment to Ohio’s state constitution. Ohio’s home rule provision states that “municipalities shall have the authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, that are not in conflict with general laws.” The judge found that a municipal ordinance can only be preempted when it conflicts with a state “general law,” such as a law affirmatively articulating “police, sanitary, or similar regulations.” Ohio’s firearms uniformity law, by contrast, only purports to limit municipal authority to legislate in certain areas. The judge found that the Ohio preemption statute violates the state constitution “by purporting to limit legislative power of a municipal corporation to set forth police, sanitary or similar regulations.” The opinion also noted that the law was ambiguous because it allowed municipalities to regulate the sale of firearms but not to zone firearms manufacturing (by restricting gun manufacturers from operating in areas zoned for residential use, for example). The judge observed that the preemption law’s private-plaintiff enforcement mechanism would “effectively end home rule as the threat of litigation from third parties would always be present,” and prevent municipalities from regulating even in ways that are protected by the home rule amendment. Therefore, the judge granted a preliminary injunction of the expanded preemption law. Ohio has stated that it will appeal the ruling, which appears to be stayed pending that appeal.
Almost all states include some form of “home rule” in their state constitution. As Richard Briffault has explained, these provisions were adopted to “enable local governments to take the initiative and adopt local laws without having to wait for specific or express state authority,” although in some instances they also carve out areas where municipalities have exclusive power to regulate. State preemption laws, which vary in scope but generally prevent local and municipal governments from regulating firearms with limited exceptions, have been a consistent fixture of the gun regulation landscape since the 1980s. After some local governments began to pass strict gun regulations pursuant to home rule, including handgun bans, an NRA-backed campaign for state preemption laws ultimately succeeded in the vast majority of states. As Rachel Simon has described, “[f]orty-five states have adopted express preemption statutes curtailing or entirely prohibiting local gun regulation, and several jurisdictions now threaten localities with penalties for violating such restrictions.” Colorado repealed its preemption statute in 2021, allowing municipalities greater freedom to regulate firearms, and Democratic politicians in other preemption states have supported similar measures.
State courts have, for the most part, upheld these preemption laws and construed them broadly. Florida’s expansive preemption statute was upheld by a state appellate court in April 2021 after some provisions were initially invalidated at the trial level, as Jake described in a prior post. The city of Philadelphia sued to invalidate Pennsylvania’s preemption law, alleging a state-created danger, due process violations, and an infringement of the separation of powers. Those claims were dismissed by a state appellate court sitting en banc in June 2021, and a state judge recently blocked an executive order by Philadelphia’s mayor banning firearms in recreation centers due to the state’s preemption law. And the Arizona Supreme Court embraced a broad interpretation of the state’s preemption law in its 2017 decision in State ex rel Brnovich v. City of Tucson—finding that the Tucson Police Department’s destruction of seized firearms improperly infringed on a preempted area.
Ohio’s own Supreme Court, in a 2010 decision in City of Cleveland v. Ohio, upheld a predecessor state gun preemption statute because it “establishe[d] police regulations rather than limiting municipal legislative power.” The recent City of Columbus order relied on a 2017 Ohio Supreme Court decision, City of Dayton v. Ohio, to distinguish City of Cleveland. City of Dayton determined that state laws regulating the use of traffic cameras did not serve the state’s intended purpose and thus were not targeted to an “overriding state interest”—rendering them non-general laws that unconstitutionally infringed upon home rule. However, City of Cleveland’s positive assessment of the legislative goal of “bring[ing] uniformity to the state [by] superseding the existing patchwork of local firearm ordinances” suggests that the state’s high court may not extend its reasoning in City of Dayton to state laws involving firearms.
While some legal challenges have succeeded, the scope of those rulings is often narrow. For example, in 2016, the Pennsylvania Supreme Court struck down the state’s private right of action to enforce preemption violations, finding that the legislature improperly incorporated the provision into another bill on an unrelated subject.
The recent City of Columbus decision is notable in part because of its unusual factual and procedural background. The ruling comes after a period of over three and half years in which the judge did not decide the preliminary injunction motion, which was filed shortly after the amended preemption law took effect (in March 2019). The Columbus city attorney filed suit in the Ohio Supreme Court in October of this year against the judge himself, asking the supreme court to order the judge to rule. While waiting for the decision, the Columbus City Council introduced draft legislation regulating firearms, including a ban on magazines holding 30 or more rounds of ammunition and laws expanding coverage for self-manufactured firearms and addressing negligent storage and straw purchasing. The city’s lawsuit appears to be part of an effort to fight for greater local autonomy and then enact stricter gun regulations.
Despite the lengthy interlude between the filing of the preliminary injunction motion and the judge’s ruling, the opinion itself is short and contains only a few pages of substantive legal analysis—which is striking because it purports to invalidate Ohio’s entire preemption law, “both in its original and amended forms.” Given the pending appeal, I’m not sure it is worth putting much stock into the decision itself.
Whatever its staying power, the City of Columbus decision underscores the consequences of broad and punitive state firearm preemption laws, including laws such as Ohio’s that impose civil liability on municipalities whose gun laws are ultimately found to be preempted. The judge noted in his order that, at oral argument, counsel for the “[s]tate was unaware of any other state statutes that allowed private citizens or organizations to sue municipalities for promulgating laws later determined to conflict with state law,” as the Ohio preemption statute does. But, as Professor Briffault notes, “[s]everal states have adopted punitive preemption laws that do not merely nullify inconsistent local rules—the traditional effect of preemption—but rather impose harsh penalties on local officials or governments simply for having such measures on their books.” (Erin Adele Scharff also examines this phenomenon in her 2018 article Hyper Preemption.) For example, Florida’s preemption law provides for a civil fine up to $5,000 for any person or entity who knowingly or willfully “enact[s] or caus[es] to be enforced” an infringing local ordinance. Kentucky’s law authorizes a person or entity “adversely affected by any [local] ordinance” to file suit against a city government or government official and recover attorney’s fees. And Arizona and Oklahoma similarly authorize private civil actions against local governments and government officials. (Arizona’s law goes further and withholds state funding from municipalities found to have legislated on preempted subjects.) Thus, the judge’s observation that Ohio’s law is the “only . . . state statute that imposes civil liability for passing a law which may later conflict with the state law”—which may date from a 2019 oral argument in the case—is likely no longer accurate.
Developments outside of the firearms field illustrate how far state governments might push these legislative strategies. In 2017, Texas passed an anti-sanctuary-city law (S.B. 4) which bans localities from limiting the enforcement of immigration laws, requires the state attorney general to file an action against any public official believed to have abstained from enforcing such laws, and provides that elected or appointed officials convicted of violating the law shall be removed from office. The Fifth Circuit largely upheld the statute, including its penalty provisions, in a legal challenge brought by San Antonio and Austin in 2018. Some states have also recently adopted highly-plaintiff-favorable rules designed to encourage private individuals to sue entities for violating a state law; and one imagines this tactic might ultimately be harnessed in the preemption context. (As I’ve written about previously, both red and blue states have used these legislative “innovations,” in contexts including guns and abortion.)
If anything, the City of Columbus order simply shows how dramatically the preemption landscape has shifted in the three-plus years that case was pending. So long as state courts continue to construe all gun regulation as a “statewide” concern or interest and uphold most preemption laws under that theory, home-rule challenges to preemption laws are unlikely to make much headway. Yet, as occurred in Colorado after a spate of mass shootings in early 2021, states may face pressure from localities to repeal or relax preemption statutes in the wake of such tragedies. And, as Joseph Blocher has written, increased local regulatory autonomy may be one way to address the gulf that exists between urban and rural gun cultures within the U.S.