Bump Stocks and State Preemption Laws
A major takeaway from the Supreme Court’s recent decision in Cargill v. Garland striking down ATF’s regulatory ban on bump stocks is that legislators remain free to ban the devices. The Court was clear on this point, with the majority holding only that “ATF [] exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns” under the National Firearms Act. And, in a short concurrence, Justice Alito noted that there was a strong “case for amending” the NFA to specifically cover bump stocks and that “Congress can act” to do so. Such a bill was introduced shortly after the decision but swiftly blocked. Congress is not the only legislative body capable of acting. Cargill doesn’t cast any doubt on the existing bump stocks bans in 15 states plus DC, and state and local legislators in other states might also be able to enact new bans now that there is no federal bar in place. That said, the thicket of state firearm preemption laws will add complexity to any possible response at the local level.
For example, consider Pennsylvania and other purple states where major cities under Democratic control may now wish to enact bump stock bans. Pennsylvania does not ban bump stocks under state law, and the Philadelphia City Council acted quickly after Cargill to pass legislation prohibiting “bump stocks and other devices that increase a gun’s rate of fire.” The law was almost immediately challenged in court by plaintiffs arguing that it is contrary to the state’s firearm preemption law “that generally blocks the city from writing its own gun regulations.”[1] Pennsylvania—like 42 other states—has a state law that blocks municipalities from regulating on most topics related to firearms. The Pennsylvania law provides as follows:
No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.
Philadelphia and the state have previously sparred over the scope of the state’s preemption statute. Philadelphia sued the state in 2020 alleging that the preemption law violated structural provisions of the state constitution and that, “[b]ut for [preemption], Philadelphia and other municipalities would adopt or enforce firearm ordinances that would reduce gun violence.” A state appellate court rejected the city’s arguments in 2022, and the case is currently on appeal to the Pennsylvania Supreme Court.[2] An executive order by Philadelphia’s mayor banning guns in “the city’s indoor and outdoor recreation spaces” was enjoined by a judge in 2022 under the state’s preemption law.
The city’s “places of recreation” ban seems a relatively straightforward application of the preemption statute which bars local action to regulate “lawful . . . transportation of firearms.” The city attempted to ban carrying guns in those locations, a topic which only the state legislature may regulate. But bump stocks present a much closer question. That’s because—as I described in an earlier post assessing a hypothetical Second Amendment challenge to a bump stock ban—there’s real doubt about whether bump stocks themselves qualify as “arms.” And, in the preemption context, the case for coverage seems even weaker. For example, Pennsylvania’s law refers to “firearms, ammunition or ammunition components.” A bump stock is neither a firearm nor ammunition, and I don’t immediately see a colorable argument that it is an “ammunition component” either (that term would appear to refer to magazines and other attachable devices that hold ammunition). Thus, I think Philadelphia probably has the better of the argument; if state courts construe the preemption law to stop short of covering bump stocks, then cities like Philadelphia are free to pass their own bans. The Philadelphia case will be an interesting foil to Cargill itself. If a regulatory agency cannot broadly construe legislative language to confer the regulatory authority to ban bump stocks, it stands to reason that it is also improper to construe the language in a preemption law expansively to bar local legislation prohibiting bump stocks.
A lot may depend, however, on the specific language in a state’s preemption law. Some preemption laws, like Pennsylvania’s, cover only firearms, ammunition, and “components” or subparts of those items.[3] For example, North Carolina’s statute covers regulations dealing with “the possession, ownership, storage, transfer, [etc.] . . . of firearms, firearms ammunition, [and] components of firearms . . . .” Ohio’s law also refers to “firearms, their components, and [] ammunition, and knives.” And Kansas preempts local regulations of firearms or ammunition, or any component or combination thereof.” A second category of states go further in blocking local regulation by including “accessories” or expansively covering any object “related” to guns. For example, Arizona’s law preempts “any ordinance, rule or tax relating to the transportation, possession, carrying, [etc.] . . . of firearms or ammunition or any firearm or ammunition components or related accessories in this state.” Texas is another example, preempting all local regulations regarding “firearms, air guns, knives, ammunition, or firearm or air gun supplies or accessories.” And Oregon’s law covers “firearms or any element relating to firearms and components thereof, including ammunition.” There are also states that fall in an intermediate grey area. Iowa is one example, as the state’s preemption statute extends to “firearms, firearms attachments, or other weapons.”
My initial reaction is that a bump stock is not a component of a firearm but is an “accessory,” “attachment,” or “related” device.[4] This would mean that, in addition to Pennsylvania, municipal governments in North Carolina, Ohio, and Kansas (among other states) retain the ability to legislate on bump stocks. The differences in wording among state preemption statutes may provide interesting openings for cities and municipalities in certain states to act independently and could lead to further litigation at the state level over the proper interpretation of language in the preemption laws. It’s also possible that, in states where Republicans control both houses of the legislature, local efforts to regulate bump stocks will prompt legislative moves to expand the scope of firearm preemption. In the absence of Congressional action, then, bump stocks could put pressure on state preemption laws in new and unexpected ways.
[1] For more background on the Philadelphia law and the nascent legal challenge to that law, see The Trace’s reporting here.
[2] Similar challenges have been brought by left-leaning cities in other purple states. For coverage of a recent challenge to Ohio’s preemption statute by the city of Columbus, see this prior post. In general, these challenges have not succeeded. The initial injunction issued in the Columbus case was swiftly reversed by an appellate panel that upheld the state’s preemption law.
[3] The Court will consider a component-related question next term in Garland v. VanDerStok: whether ATF was entitled to regulate weapon-part kits that allow users to assemble guns from their component parts as “firearms” under the Gun Control Act.
[4] In most states, the relevant terms themselves are defined in other sections of the statute and those definitions might shed additional light on the bump stock issue.