Stanford Law and Policy Review
7, no. 1, (1996): 51.
Posted for Educational use only.
The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
IN DEFENSE OF HOME RULE: CALIFORNIA'S PREEMPTION OF LOCAL FIREARMS REGULATION
Darwin FarrarCopyright © 1996 by the Board of Trustees of the Leland Stanford Junior University & Darwin Farrar
PREFACE:
In 1991, one group of Californians surpassed their counterparts in all other states in firearm fatalities, firearm homicides and unintentional firearm injuries. This group did not engage in "high risk" behaviors or live a "criminal" lifestyle, and its members shared no common ethnic heritage, class affiliation, or local geographic location. The members of this group did have one common characteristic: they were all between zero and four years of age. The continuing deaths and injuries of these children and thousands of others in large part results from greater firearm accessibility and inadequate firearm regulation at the state and local levels. Ironically, national special interests groups that advocate protection of the individual through uniform gun control laws have mounted an effort to curtail local communities' abilities to address this issue. This paper sets forth the political landscape, policy considerations, and current state of the law governing state preemption of local firearms regulation.
I. BACKGROUND
The urban handgun problem presents a classic situation in which a municipality must be free to exercise its police power to enact its own solution. [1]
The vast majority of firearms made in California are manufactured by six facilities located within forty-five miles of each other in Southern California. In 1992, these six manufacturers collectively produced 685,934 handguns, amounting to thirty-four percent of all handguns made in the United States. [2] During the same year these six facilities produced more than eighty percent of the .25 caliber, .32 caliber and .380 caliber pistols made in this country. These same manufacturers share the dubious distinction of having collectively produced eight of the ten most frequently confiscated handguns in California in 1993. [3] These six companies produced sixty-two percent of all guns seized throughout the nation at crime scenes and traced during 1991- 1993 by the Bureau of Alcohol, Tobacco and Firearms (BATF). [4] Firearm sales are big business in California, but they exact a high toll on the state. In 1991, firearms injuries cost California $329 million in direct and [Page 52] indirect medical costs. [5] No doubt billions more were accrued in family pain, suffering, and emotional trauma.
Most Californians perceive crime, violent crime in particular, to be the single most important problem facing California today. [6] With 1,119 violent crimes per 100,000 residents in 1993, California had the fourth highest rate of violent crime in the country, behind the District of Columbia (2,832 per 100,000 residents), Florida (1,207 per 100,000 residents), and New York (1,122 per 100,000 residents). [7] In 1993, a total of 336,100 violent crimes were committed in California. Of this total, 4095 were homicides, 11,754 were forcible rapes, 126,347 were robberies, and 193,904 were aggravated assaults. [8] While most of these figures represent a decrease from the previous year, homicides - traditionally the worst of violent crimes - increased 3.2% from 1992 to 1993 (with a cumulative increase of 22.9% from 1988 to 1993). [9] In particular, the number of youths murdered has dramatically increased. In 1991 in California, homicide was the leading cause of death for children between the ages of ten and fourteen and the second most frequent cause of death for children between the ages of zero and four. In 1991, homicide was the first or second leading cause of injury death to children between the ages of zero and four in thirty states. [10] In 1993, more than ninety percent of homicides among teenagers fifteen to nineteen years of age involved firearms (94.5% among African Americans, 90% among Hispanic and 74% among whites); and for those between twenty and twenty-four years of age, eighty-six percent of homicides involved firearms (94%, 85% and 70% among African American, Hispanic and white males, respectively). [11]
Firearms are intimately linked to violence in California. In 1993, firearms were used in 74% of all homicides, 65% of all robberies, and 23% of aggravated assaults in the state. [12] Indeed, in 1993 more Californians age zero to twenty-four died from firearm injuries than from motor vehicle injuries, AIDS, heart disease and cerebrovascular disease combined. [13] Nowhere is the impact of firearm violence more evident than among the youth of California. In 1990, eighty-two percent of homicides among teenagers fifteen to nineteen years of age involved firearms (91% among African American and 77% among white males); for those between twenty and twenty-four years of age, 76 percent of homicides were from firearms (87% and 71% among African American and white males, respectively). [14]
Similar trends appear in younger populations. Nationally, in 1982 firearms were responsible for 7.5% of all deaths of children between zero and nine years of age; in 1991, this figure jumped to 10%. For children between ten and fourteen years of age, firearms played an even greater role. In 1982, firearms caused 5.34% of deaths in this age group, and in 1991, this percentage jumped to 15.54%. [15] In 1991, for ages zero to four, five to nine and ten to fourteen, California led all other states in firearm fatalities, firearm homicides and unintentional firearm injuries. [16]
In addition to an increasing rate of firearm injury death, young children report that they witness violence, particularly firearm violence, with alarming frequency. [17] While the emotional trauma that young children experience as a result of witnessing these violent acts is not discussed as often as firearm death and injury, it is far more prevalent than either death or injury. An understanding of the emotional and psychological effects of continuing violence is essential to reducing the incidence of youth violence. Youth who have chronic or acute exposure to violence often manifest symptoms of post- traumatic stress disorder. [18] These symptoms include low self-esteem, a restricted range of affect, a sense of a foreshortened future, learned helplessness, anger, aggression, problems in school, and problems getting along with peers and family. These symptoms are especially pronounced in younger children. [19] Indeed, some argue that the symptomology of post-traumatic stress disorder may in fact predispose children to violent behavior later in life and thereby contribute to the "cycle of violence." [20]
In response to what many perceive as an epidemic, educators, researchers and professionals from a variety of fields have joined with community activists to address violence. The increasing role that firearms have come to play in injury death has led experts to focus on the linkages between violence and handguns, the fatal instrumentality of violence. Studies have found that: (1) the rate of youth suicide is lower in populations that have decreased firearm accessibility due to more restrictive gun control laws, [21] (2) liberalized firearm- carrying laws increase the firearm homicide rate, [22] and (3) the presence of a firearm in the home significantly increases the likelihood of a homicide or suicide occurring in the home. [23] Given these linkages, it is no wonder that in 1992 firearm injury surpassed motor vehicle crashes as the leading cause of injury death in the state. [24] That same year, Californians purchased an average of more than 1,000 handguns each day. [25]
As an issue, effective gun control legislation continues to gain public support. [26] Recent polls report that California voters favor handgun control. This support crosses party affiliations (58% of Republicans, 59% of Independents and 67% of Democrats favor handgun control laws), gender (54% of men and 68% of women favor handgun control laws), and even gun ownership (50% of gun-owning households favor handgun control laws). [27] This broad- based support has brought into focus the need for regulation at both the state and local levels. [Page 53]
II. THE CALIFORNIA STATE LEGISLATURE
The Second Amendment of the federal Constitution, providing that the right of the people to keep and bear arms shall not be infringed, applies only to the exercise of power by the federal government, and, since the state constitution contains no provision on the subject, the legislature is free to deal therewith. [28]
Though there is little doubt that the states have the authority to regulate firearms, legislative efforts to address firearm violence have been highly circumscribed. [29] For the most part state legislative efforts targeting firearm violence generally fall into one of three categories. [30] First, place and manner restrictions prohibit the use or possession of firearms in certain places or in conjunction with certain acts. Examples of these types of laws include concealed weapons permit requirements and increasingly popular prison term sentence enhancements for crimes committed with firearms. Proponents of such laws rely significantly upon their proclaimed deterrence value, but this desired effect on crime is often noted to be lacking.
A second category of regulation involves selective ownership prohibitions. Laws barring mental incompetents, convicted felons, minors and other classes of individuals from purchasing firearms arise from the belief that these groups are more likely to use such weapons wrongfully. While the recently enacted federal Brady Bill, [31] which provides for a waiting period before the purchase of a handgun and the establishment of a instant national criminal background check before the transfer of any firearm, represents a significant step toward a system of background checks prior to purchase, such laws will have no impact on firearm violence committed by otherwise law-abiding or black market firearm purchasers.
The third approach taken by state legislatures has been to prohibit the ownership of "high-risk" firearms, absent some special need or membership in an identified group. In this regard, the California legislature has undertaken to: ban assault weapons and plastic firearms; bar semi-automatic to fully-automatic firearm conversions; and bar the possession, manufacture and sale of machine guns and multiburst trigger activators. [32] With regard to ammunition, the legislature has banned the sale of .60 caliber bullets, armor-piercing ammunition, and explosive-tipped ammunition to the general public. While these "supply reduction laws" have the potential to reduce overall firearm availability, they have yet to be used to this end.
The state legislature's inaction in addressing firearm violence may not be of paramount concern. While state-level regulations have the benefit of providing uniform laws and the potential to reduce overall firearm availability, regulation at the state level as a means of decreasing firearm violence has faltered for several reasons. First, state level regulation is often slow and unresponsive in addressing firearm problems. For example, recent polls report that in addition to generally favoring handgun control, eighty percent of California voters favor banning the manufacture, sale and possession of Saturday Night Specials, and eighty percent want to increase the penalty for carrying a loaded, concealed handgun. Despite this overwhelming public sentiment, three bills increasing access to firearms [33] and three bills facilitating the carrying of concealed weapons were introduced in the 1995 legislative session. [34]
In addition, state legislation can be a blunt instrument of policy; it is best used to address shared problems that more or less equally impact different regions of the state. It is difficult for legislation at the state level to accommodate differences in firearm violence across California's various demographic regions. In 1993, when grouped by homicide rate, six California counties exceeded the statewide homicide rate of 12.9 homicides per 100,000 (four had rates of 15.0 and higher), while eleven counties had homicide rates between .0 and 4.9 per 100,000. [35] These different homicide rates are at least in part due to metropolitan/non metropolitan differences. In one study, the firearm homicide rate in metropolitan counties was found to be five times the rate in non-metropolitan counties. [36] Within the legislature these differences may result in divergent and inconsistent perspectives among legislators from the state's different regions.
Lastly, and perhaps most importantly, well-funded special interest groups can play a significant role in the development or demise of state legislation. Few organizations are as well known for their influence on states' firearm policies as the National Rifle Association (NRA). [37] As of 1992, the NRA was a corporate nonprofit with nearly 2.6 million members, 400 employees and approximately $128 million in assets. [38] Nationally, in 1990, the lobbying arm of the NRA, the Institute for Legislative Action (ILA), received nearly $18 million of the NRA budget. While the NRA traditionally claims to support individual rights and a government that is representative of the people, almost ten years ago the NRA adopted as its primary legislative strategy the endorsement of state legislation preempting local regulation of firearms. As noted in a 1986 NRA-ILA state legislative issue brief:
The NRA continues to recognize preemption as the major legislative safeguard to prevent local anti-gun action and to guarantee all citizens their right to own and use firearms for legitimate purposes. For this reason, enacting firearm preemption in those states without this legislative [Page 54] safeguard remains the top legislative priority. ... While the NRA has traditionally believed that the government most representative of the people is best, the recent popularity of restrictive local ordinances has created the need for states to preempt such action. [39]
Despite local regulation being generally more expedient than regulation developed at the state level, and in spite of the fact that local regulation seems an especially appropriate means to address firearm violence, the NRA been somewhat successful. [40] The California courts have also recognized the need for local regulations; [41] to some degree, however, despite the fact that gun violence varies widely across different regions, California is still one of more than thirty states that preempts some local firearms ordinances. [42]
The gaps and weaknesses of state level regulation are inherent in the broad brush approach. This broad approach, though useful when dealing with fundamental problems or providing general direction for the state at large, does not and cannot take into account the varying and often conflicting problems faced by California's diverse demographic areas. This point was made some time ago in In re Hoffman. [43] As noted by the Hoffman court:
The state in its laws deals with all of its territory and all of its people. The exactions which it prescribes operate (except in municipal affairs) upon the people of the state, urban and rural, but it may often, and does often happen that the requirements which the state sees fit to impose may not be adequate to meet the demands of densely populated municipalities; so that it becomes proper and even necessary for municipalities to add to state regulations provisions adapted to their special requirements.
California's preemption of local firearms regulation limits the ability of localities to address firearm violence as it impacts their communities. Hence, the question today is not just whether it is "proper and even necessary for municipalities to add to state regulations," but also to what extent such additions will be tolerated within the framework of existing state regulations. Full and adequate consideration of this question first requires that we identify and understand the limits of California's preemption of local firearm regulation.
III. STATE PREEMPTION OF LOCAL REGULATION
People in places frequently possess a clear sense of the ways in which the evolution of different issues have taken place, and in particular the limits of social action that are possible at any moment....To stop the community passing its own legislation and enjoying the consequences, it becomes necessary to undermine the independent legislative bases within the community. [44]
The principle of local control or "home rule" ultimately derives from the Tenth Amendment to the U.S. Constitution, providing that states and the American people themselves retain all powers not granted to the federal government. [45] Though difficult to delineate, the broad powers provided the to states by the Tenth Amendment include all legitimate functions of government. [46] It is generally recognized that the broad police power of the state can be delegated to local and municipal government; when so delegated, the police power of a county or city "is as broad as the police power exercisable by the legislature itself." [47]
Delegation of power to local government by the state is generally presumed valid, absent any conflict with the laws of the state. [48] Local legislation conflicts with state law and is therefore preempted where it duplicates, contradicts, or enters an area fully occupied by state law. [49] Local legislation is "duplicative" of state law when it is coextensive with it and "contradictory" to state law when it is inimical to it. [50] The legislature's full occupation of the relevant field may be express or implied. Express preemption is usually identified by the use of specific language setting forth the legislature's intent to occupy the entire field to the exclusion of local government. As set forth in In re Hubbard, [51] in the absence of specific language, the legislature's intention to occupy the field will be deemed implied where: (1) the subject matter has been so fully and completely covered by state law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by state law but couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by state law, and the subject is of such a nature that the adverse effect of a local ordinance on the state's transient citizens outweighs the possible benefit to the locality. [52] An exception to this general rule allows a charter city to regulate the subject even if its regulation conflicts with state law when the matter is considered a "municipal affair." [53]
Courts have generally looked upon local regulation favorably, interpreting state statutes narrowly to avoid [Page 55] potential conflicts between state and local law. For example, in one of the earliest firearm preemption cases, Galvan v. Superior Court, [54] the court considered an apparent conflict between a local ordinance requiring the registration of most firearms within the San Francisco city limits and the California Dangerous Weapons Control Act. [55] After adopting a narrow interpretation of the Act, noting that the terms "registration" and "license" have a specific and distinct meaning and rejecting the notion that the statute "occupied the entire broad field of weapons control," the Galvan court held that the legislature had not expressed an intent to so completely cover the field of gun or weapons control as to make gun registration exclusively a subject of state concern. [56] With respect to the second part of the Hubbard test, the Galvan court found neither implied legislative intent nor a paramount state concern in the issue. On the latter point the Galvan court stated, "that problems with firearms are likely to require different treatment in San Francisco County than in Mono County should require no elaborate citation of authority." [57] In so stating, the Galvan court effectively dismissed the second and third parts of the Hubbard test and affirmed the authority of localities to regulate firearms.
Shortly after the 1969 Galvan decision, the legislature enacted Government Code section 53071. In relevant part this code section states:
It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulation, relating to registration or licensing of commercially manufactured firearms, by any political subdivision. [58]
While at first glance this law appears to expressly preempt local regulation of firearms, the courts, noting the legislature's failure to expressly preempt all aspects of firearm regulation, have interpreted the statute as preempting only local regulation in the more limited area of firearms licensing and registration. Cases decided in the wake of this code section focus on the legislature's failure to preempt expressly all aspects of firearm regulation. For example, in Olsen v. McGillicuddy, [59] the plaintiff sought to establish his parents' negligence per se by introducing evidence that the defendant had violated a local ordinance prohibiting parents from allowing minors to discharge BB guns. The trial court denied introduction of this evidence and the plaintiff appealed. While it was uncontroverted that the ordinance had been violated, the trial court held that section 53071 preempted the local ordinance, and hence evidence of its violation was inadmissible. The Court of Appeals reversed, after noting that the legislative intent was limited to registration and licensing and did not include an expression of intent to occupy the entire field of firearms regulation. The court stated, "We infer from this limitation that the Legislature did not intend to exclude municipalities from enacting further legislation concerning the use of firearms." [60] The court's interpretation of section 53071 is significant both in that it finds only limited express preemption and in that it rebuts any inference that the addition of this law was sufficient to establish an inference of implied preemption under the three-part Hubbard test.
More recently, in Doe v. City and County of San Francisco, [61] the Olsen court's decision was both affirmed, and in some measure, qualified. At issue in Doe was whether an ordinance that banned the possession of handguns in the City and County of San Francisco was preempted by Government Code section 53071. After affirming Olsen, the court considered whether the San Francisco ordinance merely regulated possession or amounted to a licensing or registration requirement. As applied, the ordinance required individuals who did not wish to surrender their weapons to obtain a license in order to keep the weapon in their home or business. Accordingly, the ordinance was deemed to be "a local regulation relating to licensing." [62]
When state and local laws conflict, a local government may circumvent state preemption by bringing the ordinance within established areas of municipal supremacy. Municipal supremacy over state law exists both as a matter of state law and the state constitution. As an example of the former, consider Government Code sections 53090-53095. In providing that "each local agency [of the State government] shall comply with all applicable building ordinances and zoning ordinances of the city or county in which the territory of the local agency is situated," [63] section 53090 creates an exception to the rule that state agencies' activities are regulated only by the state. This code section has supported local regulation which was otherwise preempted by the state. [64]
With respect to municipal affairs, Article 11, section 5(a) of the California State Constitution provides that "the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws." Courts have interpreted this provision to allow chartered cities to enact local regulations that would otherwise be preempted by state law, where the matter is a "municipal affair" rather than a "state concern." [65] Though often affirmed and followed, the use of this doctrine has been limited in two significant respects. First, the doctrine only applies to chartered cities - those cities that meet the requirements of Article 11, sections 6 and 8.Unlike [Page 56] chartered cities, cities possess only those powers expressly conferred upon them by the state legislature. [66] Second, neither Article 11 of the State Constitution nor the courts have defined what qualifies as a "municipal affair." Thus, while it is settled law that in a conflict between state and local law, local law prevails in matters that are purely municipal affairs, state law prevails where the issue is of statewide concern. Whether the matter is in fact a municipal affair or state concern, is an issue that must be resolved on a case-by-case basis. In each instance the court must review the record, including the legislative findings giving rise to the state law, to identify "a convincing basis for legislative action originating in extramunicipal concerns... justifying legislative supercession based on sensible, pragmatic considerations." [67] In addition to those areas set forth in section 5(b) of Article 11 of the State Constitution, courts have enforced municipal laws over state in certain aspects of taxation, [68] parks, [69] and libraries. [70] Whether and in what context local firearms regulation may be deemed a municipal affair rather than statewide concern remains unresolved. [71]
Taken as a whole, California statutory and case law combine to narrowly delineate certain areas of local firearm regulation as clearly preempted by state law. It appears settled that Penal Code section 12026 prohibits localities from restricting firearm possession in the home or business, while Government Code section 53071 prohibits either explicit or implicit licensing schemes. Aside from these restrictions, as a matter of law, local entities remain relatively unfettered in their ability to regulate firearms. Though it is unlikely that either Constitutional or statutory provisions for municipal supremacy can be used to circumvent the state's preemption of local regulation in the area of firearms licensing and manufacturing, these approaches underscore the ability of localities to address firearm violence in other areas and further restrict the reach of state preemption of local firearms regulation.
IV. LOCAL CONTROL EFFORTS
"State bills do not put an end to communities' efforts to control their own quality of life." [72]
Recent polls reveal that support for gun control is running high in California. [73] As is often the case when public desires conflict with well-monied special interest groups, local rather than state government has taken the initiative in this area. In conjunction with public health specialists, gun control advocates and legal experts, municipalities have worked to identify and challenge the limits of state preemption of local firearms regulation. For the most part these efforts can be grouped into three categories: 1) regulation that falls within an established area of municipal concern, 2) regulation that expands the known limits of preemption, and 3) local efforts challenging the state to foster regulation in this area.
Though the vast majority of California cities have long since enacted firearm-related regulations that fall within well established areas of municipal concern (i.e., prohibitions on the discharge of firearms within the city limits and limitations on the availability of concealed weapons permits), local efforts to operate within this arena as a means of decreasing firearm violence are relatively new. For the most part these ordinances utilize local government's zoning, business licensing or conditional use permit authority. Through their zoning power, localities have prohibited gun shows and gun dealers from operating in or near residentially-zoned areas, school zones, and "safety zones." Local control over business licensing has been used to require gun dealers to maintain appropriate levels of liability insurance, follow specific safety and security standards and establish fees to recover the costs of processing applications, monitoring permit holders, and enforcing ordinance provisions. Conditional use permits have been used to specify safety standards governing firearm display and storage, type of security, and alarm and lighting systems.
While it is too early to determine the extent to which these measures effectively reduce firearm violence, such measures have already proven useful in reducing firearm availability. For example, in 1992 the City of Oakland passed an ordinance requiring firearm dealers to comply with local permit, insurance and security requirements. [74] Since passage of this ordinance the number of firearm dealers in Oakland has dropped from 117 to 8.
The preliminary successes of local efforts, the public demand for reduced firearm violence, and the intuitive appeal of limiting firearm accessibility at the local level have inspired greater efforts to expand local regulatory options. Contra Costa County's Measure C is a useful example of an ordinance that expands the boundaries of local firearms regulation. [75] This measure, approved by 78.8% of the voters in the county, adopted the Countywide Action Plan for Violence Prevention. Among other things, this plan recommended that the county actively undertake to reduce private ownership of firearms, particularly handguns and assault rifles. [76] More specifically, in addition to recommending that local zoning and licensing powers be used to regulate local gun dealers, the plan recommended that the availability of high- velocity and fragmentation ammunition be restricted; fees be imposed on firearms and ammunition to fund local enforcement, prevention, and education programs; and firearm purchases be limited to one per month per person. A recent opinion from the Attorney General's Office states that such activity is not subject to state preemption. [77] It also addressed the question of [Page 57] whether or not state law preempts the adoption of a city ordinance which makes it a misdemeanor to sell .22 to .45 caliber ammunition within the boundaries of the city and requires ammunition vendors within the city to record and maintain identification information with respect to each purchase. [78] The Attorney General concluded that a city ordinance making it a misdemeanor to sell .22 to .45 caliber ammunition would be preempted, basing this conclusion on the rather questionable belief that the state's regulation of explosive-tipped ammunition, ammunition greater than .60 caliber, and metal or armor-penetrating ammunition, amounts to partial coverage of an area of paramount state concern that will not tolerate further local action. In contrast, the Attorney General asserted that an ordinance requiring ammunition vendors within the city to record and maintain identification information with respect to each purchaser would not be subject to preemption. [79] Municipalities are currently working to ban the sale and possession of Saturday Night Specials, to require that ballistic samples be provided whenever firearms are sold, and to tax firearms and ammunition as an area of municipal concern.
A growing and essential component of local efforts to address firearm violence centers on challenging the state to foster regulation in this area. First and foremost in this regard are resolutions calling on the state legislature to rescind firearm preemption laws. Cities in Alameda, Contra Costa, Los Angeles and other counties have adopted or are considering resolutions calling for the rescission of state preemption laws. [80] These cities have joined physicians organizations, municipal government organizations and public health advocates in pressuring the Legislature to remove the constraints on municipal efforts in this area. [81] Ancillary to resolutions calling on the state to rescind its preemption of local firearms regulation are resolutions urging the state to take and/or allow municipalities to take, specific actions to deter firearm violence. For example, as part of Measure C, Contra Costa County voters approved an advisory measure calling on the legislature to impose a state surcharge on ammunition and gun sales. [82] Other efforts have focused on banning Saturday Night Specials or strengthening penalties for carrying concealed weapons without a permit. Whether these efforts will succeed remains an open question. Though bills that would rescind state preemption of firearms have become a common feature of each legislative session in the last few years, only recently has any such bill has made it as far as the Assembly floor. [83]
V. CONCLUSION
Meaningful violence prevention policy must address firearm violence. Antecedent to any such efforts is an understanding of preemption, for it is within the confines of preemption that local communities must tailor their efforts to address firearm violence. Though as a matter of law, preemption of local firearms regulation is a narrow doctrine of limited impact, the dearth of case law and the counterintuitive reasoning underlying the doctrine have combined to broaden significantly the doctrine's sphere of influence. In the absence of greater understanding of this issue, and in contrast to the analysis contained herein, preemption is often portrayed and commonly perceived as an overpowering barrier to municipal efforts to regulate firearms that do not fall within established areas of local concern. In this time of limited municipal resources, frequent, ill-founded and rarely pursued threats to challenge the enactment of local firearm regulations in court have had a substantial chilling effect on local governments. [84] In spite of these intimidation tactics, working with public health and legal specialists, local governments continue to identify exceptions to, and hence affirm the narrow limits of, the rule of preemption.
The outcome of this effort will affect issues other than firearm violence. Increasingly, preemption efforts seek to prohibit local regulation in areas where public sentiment runs counter to the interests of the powerful special interest groups that have traditionally dominated state politics. In contrast to early preemption cases which limited the power of localities to enact regulations in the face of preexisting state law, more recent preemption efforts have sought to undo or prohibit local regulation in areas where the legislature has been reluctant to act. As an issue, preemption intersects both law and policy and represents a challenge to public health efforts as well as our underlying democratic principles.
Note 1. Darwin Farrar, J.D., M.P.P., is the Director of Policy at the Pacific Center for Violence Prevention at San Francisco General Hospital in San Francisco, CA. He received his B.S., J.D. and Masters in Public Policy from the University of California, Berkeley, and his Masters in Psychology from San Francisco State University. He is a member of the State Task Force on Juvenile Crime and the Juvenile Justice Response, and has written on a variety of other issues including homelessness, environmental concerns, and community-based policy advocacy.
[1]. Stephen P. Teret et al., Gun Deaths and Home Rule: A Case for Local Regulation of a Local Public Health Problem, 9 AM. J. PREV. MED. 44, 46 (1993).
[2]. GAREN J. WINTERMUTE, VIOLENCE PREVENTION RESEARCH PROGRAM, RING OF FIRE: THE HANDGUN MAKERS OF SOUTHERN CALIFORNIA (1994). The six "Ring of Fire" manufacturers are: Arcadia Machine and Tool (AMT), Irwindale; Bryco Arms, Costa Mesa; Davis Industries, Mira Loma; Lorchin Engineering, Mira Loma; Phoenix Arms, Ontario; and Sundance Industries, Valencia.
[3]. Id. (citing Automated Firearms System Data Set, July 26, 1994) (on file with the California Department of Justice).
[4]. Id; John Mintz, Producing the Handguns of Choice Is Mostly a Family Affair, WASH. POST, Jan. 16, 1994, at H4.
[5]. See Wendy Max & D.P. Rice, Shooting in the Dark: Estimating the Cost of Firearm Injuries, 12 HEALTH AFFAIRS 171 (Winter 1993) (provides estimates and explains computation). In 1992 Californians purchased more than 1,000 handguns each day. CALIFORNIA DEPT. OF JUSTICE, Automated Firearms System DROS (dealer record of sale) count by county, 1986 through March 1993. This figure includes transfers among existing stock of firearms as well as new purchases but does not estimate unlawful transfers. There is currently one licensed gun dealer for every 290 gun owners. Federal Firearms Licensing: Hearing on H.R. 2403 Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong., 1st Sess. 32 (1993) (statement of Stephen Higgins, Director, Bureau of Alcohol, Tobacco and Firearms).
[6]. EDK & ASSOC., POLL OF 500 RANDOMLY SELECTED CALIFORNIA VOTERS (Jan. 24-26, 1995). Crime is the single most frequently cited "most important problem" facing California today. Sixty-three percent of surveyed voters responded that violence against youth in California is one of the most important social problems facing the state. Id.
[7]. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, 1993 SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS (1994).
[8]. CALIFORNIA DEP'T OF JUSTICE, HOMICIDE IN CALIFORNIA, 1993 56 (1994).
[9]. CALIFORNIA DEP'T OF JUSTICE, CRIME AND DELINQUENCY IN CALIFORNIA, 1993 8 (1994).
[10]. CHILDREN'S SAFETY NETWORK, CHILD & ADOLESCENT FATAL INJURY DATA BOOK (1994) (citing Lois A. Fingerhut, National Center for Health Statistics).
[11]. FEDERAL BUREAU OF INTELLIGENCE, U.S. DEP'T OF JUSTICE, CRIME IN THE UNITED STATES, 1993 283 (1993).
[12]. CALIFORNIA DEP'T OF JUSTICE, CRIME AND DELINQUENCY IN CALIFORNIA, 1993 8, 11-12 (1993).
[13]. CALIFORNIA DEP'T OF HEALTH SERVICES, Microcomputer Death Surveillance System (MDSS), Vital Statistics Section (1993).
[14]. CALIFORNIA DEP'T OF HEALTH SERVICES, MDSS, Death Records, Deaths From Homicide, Ages 15-19 by Place of Residence (1990).
[15]. CENTERS FOR DISEASE CONTROL, CDC WONDER SYSTEM, COMPRESSED MORTALITY FILE (an on-line microcomputer data base).
[16]. CHILDREN'S SAFETY NETWORK, supra note 10.
[17]. Kevin M. Fitzpatrick & F.P. Boldizar, The Prevalence and Consequences of Exposure to Violence among African-American Youth, 32 J. AM. ACAD. CHILD ADOLESC. PSYCHIATRY 424 (1993). In one study 17% of the children surveyed had witnessed parents and other relatives fighting, 84% had seen someone beaten, 31% had witnessed a stabbing and 34% had witnessed a shooting. Johnnie L. Dyson, The Effect of Family Violence on Children's Academic Performance and Behavior, 82 J. NAT'L MED. ASSOC. 17-22 (1990). See also Sarah Brady, TV and the Gun Epidemic, TV GUIDE, Aug. 21, 1993, at 14-15.
[18]. See, e.g., Johnnie L. Dyson, supra note 17; Robert Pynoos & Kathi Nader, Psychological First Aid And Treatment Approach to Children Exposed to Community Violence: Research Implications, 1 J. TRAUM. STRESS 445 (1987).
[19]. PYNOOS & NADER, supra note 18, at 425.
[20]. J. Wallen, Protecting the Mental Health of Children in Dangerous Neighborhoods, 22 CHILDREN TODAY 24 (1993).
[21]. David A. Brent et al., The Presence and Accessibility of Firearms in the Home and Adolescent Suicides: A Case-Control Study, 266 JAMA 2989 (1991).
[22]. D. MCDOWALL ET AL., VIOLENCE RESEARCH GROUP, DEP'T OF CRIMINOLOGY AND CRIMINAL JUSTICE, EASING CONCEALED FIREARM LAWS: AFFECTS ON HOMICIDE IN THREE STATES 9 (1995).
[23]. Arthur L. Kellerman et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 NEW ENG. J. MED. 1084-91 (1993).
[24]. CALIFORNIA DEP'T OF HEALTH SERVICES, MDSS, Death Records (1992).
[25]. CALIFORNIA DEP'T OF JUSTICE, Automated Firearms system Dealer Record of Sale (DROS) count by county (Jan.-Dec. 1994).
[26]. A 1993 survey of California voters showed that, for purposes of reducing violence, people view controlling handgun sales (42%) as much more effective than building more prisons (19%). EDK & ASSOC., supra note 6.
[27]. Id.
[28]. 63 Cal. Jur. 3d 526 (1995), citing Galvan v. Superior Court of San Francisco, 70 Cal. 2d 851 (1960).
[29]. Cases rejecting the idea that the Second Amendment infringes on state's ability to regulate firearms include: Ex Parte Rameriz, 226 P. 914 (Cal. 1924); People v. Garcia, 226 P.2d 837 (Cal. 1950).
[30]. For a fuller discussion of the regulatory scheme, see Franklin E. Zimring, Firearms, Violence And Public Policy, SCI. AM., 48-54 (Nov. 1991).
[31]. 18 U.S.C.A. § 922 (West 1995).
[32]. See, e.g., The Roberti-Roos Assault Weapons Control Act of 1989, CAL. PENAL CODE §12275 (West 1995).
[33]. 1995 CA A.B. 70; 1995 CA A.B. 132; 1995 CA S.B. 65.
[34]. 1995 CA A.B. 92; 1995 CA S.B. 71; 1995 CA S.B. 74.
[35]. CALIFORNIA DEP'T OF JUSTICE, HOMICIDE IN CALIFORNIA, 1993 113 (1994).
[36]. John H. Sloan et al., Handgun Regulations, Crime, Assaults, and Homicide: a Tale of Two Cities, 319 NEW ENG. J. MED. 1256--62 (1988).
[37]. Andrew Kirby, Law and Disorder: Morton Grove and the Community Control of Handguns, 11 URB. GEOGRAPHY 474 (1990).
[38]. JOSH SUGARMANN, NATIONAL RIFLE ASSOCIATION: MONEY, FIREPOWER & FEAR (1992).
[39]. INSTITUTE FOR LEGISLATIVE ACTION, NAT'L RIFLE ASSOC. OF AMERICA, NRA-ILA STATE LEGISLATIVE ISSUE BRIEF (1986).
[40]. Teret et al., supra note, 1 at 46.
[41]. See e.g., People v. Jenkins, 207 Cal. App. 2d Supp. 904, 907 (1962); People v. Commons, 64 Cal. App. 2d Supp. 925, 932 (1944); Gleason v. Mun. Court, 226 Cal. App. 2d 584, 587 (1964).
[42]. HANDGUN CONTROL, INC. (Washington D.C.), January 1995 (unpublished material).
[43]. In re Hoffman, 155 Cal. 114, 118 (1909).
[44]. MARK GOTTDIENER, THE DECLINE OF URBAN POLITICS (1987).
[45]. The term "people" is not interpreted as conferring these powers on a particular individual, but on the collective individuals in the state.
[46]. KENNETH R. WING, THE LAW AND THE PUBLIC'S HEALTH (1985).
[47]. See Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 140 (1976).
[48]. Article XI, section 7 of the U.S. Constitution provides, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." See also, Candid Enterprises, Inc. v. Grossmont Union High School Dist., 39 Cal. 3d 878, 885 (1985) ("Counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law.").
[49]. See Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893 (1993).
[50]. See In Re Portnoy, 21 Cal. 2d 237, 240 (1942) (finding duplication where local legislation purported to impose the same criminal prohibition that the general law imposed); Ex Parte Daniels, 183 Cal. 636, 641-48 (1920) (regarding contradictory local legislation).
[51]. In re Hubbard, 62 Cal. 2d 119 (1964).
[52]. Id. at 125.
[53]. Doe v. City and County of San Francisco, 136 Cal. App. 3d 509, 511 (1982), citing Bishop v. City of San Jose, 1 Cal. 3d 56, 61-63 (1969); Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal. 2d 276, 292-93 (1963); Long Beach Police Officers Ass'n v. City of Long Beach, 61 Cal. App. 3d 364, 371 (1976); see also U.S. CONST. art. XI, § 5(a)(7).
[54]. 70 Cal. 2d 851 (1969).
[55]. California Penal Code § 12026 states:
"any citizen of the United States... shall not be prohibited from owning, possessing, keeping or carrying, either openly or concealed, anywhere within the citizen's... place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident any pistol, revolver or other firearm capable of being concealed upon the person, and no permit or license to purchase, own, possess, keep or carry, either openly or concealed, any such firearms... shall be required of the citizen or legal resident."
CAL. PENAL. CODE § 12026 (West 1995).
[56]. Galvan v. Superior Court, 70 Cal. 2d 851, at 862 (1969).
[57]. Id. at 864.
[58]. CAL. GOV'T CODE § 53071 (West 1995).
[59]. 15 Cal. App. 3d 897 (1971).
[60]. Id. at 902; See also Sipple v. Nelder, 24 Cal. App. 3d 173, 177 (1972).
[61]. 136 Cal. App. 3d 509 (1982).
[62]. Id. at 517.
[63]. CAL. GOV'T CODE § 53090 (West 1995).
[64]. See, e.g., City of Santa Clara v. Santa Clara Unified Sch. Dist., 99 Cal. Rptr. 212 (1972).
[65]. Bishop v. City of San Jose, 81 Cal. Rptr. 465 (1969); Ector v. City of Torrance, 109 Cal. Rptr. 849 (1973).
[66]. Coffineau v. Eu, 68 Cal. App. 3d 138 (1977).
[67]. California Fed. Sav. & Loan Ass'n v. City of Los Angeles, 54 Cal. 3d 1, (1991); Johnson v. Bradley, 4 Cal. 4th 389 (1992); Cawdrey v. City of Redondo Beach, 15 Cal. App. 4th 1212, 1219 (1993).
[68]. Fisher v. County of Alameda, 24 Cal. Rptr. 2d 384 (1993).
[69]. Simons v. City of Los Angeles, 133 Cal. Rptr. 721 (1976).
[70]. City of Pasadena v. Paine, 126 Cal. App. 2d 93 (1954).
[71]. Compare 65 Op. Att'y Gen. 457 (1982) with Galvan v. Superior Court, 70 Cal. 2d 851, 861 (1969).
[72]. Kirby, supra note 37, at 474-87.
[73]. See EDK & ASSOC., supra note 6.
[74]. Oakland, CA., No. 11424 C.M.S. (1992).
[75]. Taking Aim at Gun Dealers: Contra Costa's Public Health Approach to Reducing Firearms in the Community (on file with the Contra Costa County Health Services Prevention Program and the PACT for Violence Prevention Coalition) (1995).
[76]. Id.
[77]. OFFICE OF THE ATTORNEY GENERAL, STATE OF CALIFORNIA, OFFICIAL REPORTS, NO. 94-212 (1994).
[78]. Id.
[79]. Id.
[80]. CALIFORNIA STATE SENATE COMM. ON THE JUDICIARY, COMMITTEE ANALYSIS OF SENATE BILL 1293, 1993-1994 Sess. (1994).
[81]. Government organizations calling for rescission of state preemption laws include the League of California Cities and the California Police Chiefs Association. Medical groups include the California Medical Association and Physicians for Social Responsibility.
[82]. See Taking Aim at Gun Dealers, supra note 75.
[83]. In the 1993 California legislative session, the following four bills were introduced that would have repealed state firearms preemption: AB 2706 (Assmb. L. Caldera), AB 2865 (Assmb. B. Lee), AB 100X (Assmb. D. Martinez) and SB 1293 (Sen. T. Hayden). Of these bills, only AB 2706 made it out of Committee to the Assembly Floor, where it was defeated.
[84]. Interview with Councilwoman Trixy Johnson, San Jose City Council, San Jose, CA (August 15, 1995).