State Pre-emption is quickly becoming a hot issue in gun rights.

A Rebellion in Florida: Cities vs. State for Gun Control

Pre-emption laws give 43 states power over firearms regulations while some expose local leaders to personal risks

Protesters marching for gun-control legislation in Parkland, Fla., in March. Photo: Orit Ben-Ezzer/Zuma Press

By Arian Campo-Flores
The Wall Street Journal

May 9, 2018

After February’s deadly school shooting in Parkland, Fla., residents in neighboring Coral Springs exhorted city commissioners to pass new gun restrictions.

But officials face a formidable obstacle: a 2011 Florida law that exposes local leaders to the risk of personal sanctions and removal from office if they infringe on the state’s sweeping authority over firearms regulations.

“I want to do something,” said Dan Daley, a Coral Springs commissioner. “But I’m so damn restricted…that I don’t have many options.”

More cities are rebelling. In April alone, three sets of plaintiffs filed separate lawsuits in state court against Gov. Rick Scott and other state officials challenging the constitutionality of the 2011 penalties, including a group with Coral Springs and three other Broward County cities.

So-called pre-emption laws—which establish state control of a particular area of regulation and strip authority from local governments—have proliferated in the past few decades, said Lori Riverstone-Newell, a professor at Illinois State University who has studied the issue.

Such laws highlight an age-old battle among different levels of government over which is better positioned to regulate citizens’ lives. They have addressed an array of issues, from minimum-wage ordinances to plastic grocery-bag bans.

A gun-rights demonstrator on the sidelines of the National Rifle Association’s annual meeting in Dallas on May 5. The NRA supports pre-emption laws, which it says ensure Second Amendment rights aren’t weakened by local policies. Photo: Patrick T. Fallon for The Wall Street Journal

Florida is one of 43 states with broad pre-emption laws on firearms, according to the Giffords Law Center to Prevent Gun Violence, which supports stiffer gun regulations. It was the first state to go even further—punishing local officials who run afoul of the gun pre-emption law. The 2011 penalties include removal from office, a $5,000 civil fine that can’t be paid with public funds and a municipality’s liability for damage awards to residents who claim harm from the offending ordinance.

Five additional states have added penalty provisions to their gun pre-emption laws, and three others are considering doing so, according to the Giffords center. Arizona, for instance, allows for the removal of local officials from office for violating the pre-emption statute.

Kentucky opens local legislators to criminal liability for flouting the pre-emption law.

The National Rifle Association, which has pushed for the measures, argues that they ensure Second Amendment rights aren’t weakened by local policies and gun owners don’t confront an inconsistent patchwork of municipal firearms ordinances.

Battles have erupted around the U.S. After Columbia, S.C., passed a ban on bump stocks—devices that allow semiautomatic rifles to function like fully automatic ones—in December, state House lawmakers responded by filing pre-emption bills apparently aimed at thwarting the local ordinance.

In Montana, the city of Missoula is fighting the state to try to enforce an ordinance requiring background checks for unlicensed gun sales. After the state attorney general issued an opinion that state law pre-empted the ordinance, the city sued in state court last month to overrule the finding.

In Florida, Mr. Scott’s office said it was reviewing the lawsuits. “The governor’s top priority has always been protecting the safety of our students and communities,” said John Tupps, his communications director.

City leaders say the specter of severe penalties creates a chilling effect. Under normal circumstances, a municipality can pass an ordinance, and if opponents successfully challenge it in court, the measure is simply invalidated, said Jamie Cole, the city attorney of Weston, Fla., part of a group of 19 cities that sued the state.

But because of the penalties, local officials often hesitate to pursue an ordinance, even if they believe it is permissible, for fear that a court might disagree and subject them to punishment.

“By creating a penalty, you eliminate the ability of a city to test the boundaries of this pre-emption,” Mr. Cole said.

Local officials also argue that the law prevents them from tailoring regulations to their particular settings. While rural residents with hunting traditions might support permissive firearms ordinances, urban areas with crime problems might not.

“The idea that we can’t even think about managing our own home turf is honestly ludicrous,” said Dan Gelber, mayor of Miami Beach, also part of the group of 19 cities.

Eric Friday, general counsel of the gun-rights group Florida Carry, said the penalties are needed to rein in local officials. “They think their elected position gives them carte blanche to violate state law and not suffer any consequences,” he said.

The three Florida lawsuits challenge the constitutionality of the penalties, not the heart of the pre-emption law itself, which would pose a more daunting legal fight. Cities say that if they had more leeway, they could pursue measures that they think might be allowed under the law, such as banning high-capacity magazines or regulating firearms on city property.
The lawsuits offer various arguments, but feature one common contention: The penalties violate local officials’ well-established immunity from liability for performing legislative activities.

“People elected us to office to represent them,” said Weston Mayor Daniel Stermer. “Yet we can’t carry out what they want us to do.”