University of San Francisco Law Review
30 (1996): 395.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain
a back issue.
CALIFORNIA DREAMIN': THE MYTH OF STATE PREEMPTION OF LOCAL FIREARM REGULATION
Eric Gorovitz *Copyright © 1996 University of San Francisco School of Law & Eric Gorovitz
IN RECENT YEARS, firearms have eclipsed automobiles as the primary cause of injury-related mortality in California and six other jurisdictions. [1] In 1993, in Contra Costa County, California, thirty-three percent of the deaths due to injury resulted from firearms, while nineteen percent were attributable to motor vehicle crashes. [2] The Federal Centers for Disease Control and Prevention have projected that firearms will become the primary cause of injury-related mortality nationwide by 2003. [3] Despite this trend, federal and state legislatures, under the influence of the pro-gun lobby, have resisted taking aggressive regulatory steps to reduce firearm-related injury and death. [Page 396]
The rapid rise in firearm-related deaths has prompted a conceptual shift in the approach of many thinkers involved in the development of firearm policy. Traditionally, firearm policy has fallen primarily within the purview of the criminal justice system, which focuses on punishing individuals who cause injury through the use of firearms. As death rates have risen, however, firearm injury has become an increasingly compelling public health problem. [4]
As with other public health problems, wide variation exists among communities in the nature and extent of firearm-related morbidity and mortality. [5] Such variation suggests that local governments need the ability to adopt reasonable measures to deal with the specific problems faced by their communities. Historically, local governments have enjoyed broad regulatory freedom in meeting the public health needs of their constituents. [6] Local governments are uniquely able to address efficiently and accurately the specific public health problems prevalent in their communities because they [Page 397] tend to be closer than federal and state governments, both geographically and culturally, to their constituents.
However, anti-gun-control forces, led by the National Rifle Association ("NRA"), are seeking systematically to disable local governments from adopting effective public health measures to reduce firearm-related injury and death. Riding on a wave of misinformation about the meaning of the Second Amendment, [7] the pro-gun lobby has led an assault on local government power by promoting state and federal legislation designed to preempt effective local regulation of firearms. In addition, organizations such as the Second Amendment Foundation have sought to undermine local regulatory efforts by challenging their enforcement. [8] These efforts by the well- organized [Page 398] anti-gun-control lobby have prompted concern among local officials in California about the extent of their power to regulate firearms. Such tactics also raise the threat of expensive litigation in defense of any regulatory efforts which cities adopt.
This Article argues that such concerns are misplaced. California statutory and case law concerning preemption in general, and firearm regulation specifically, leave a great deal of room for local governments to exercise their traditional police power to address community-specific public health concerns related to firearms. The cases establish that local governments, particularly charter cities, have broad power to adopt a wide range of measures designed to protect their constituents from the risks associated with firearms. Part I introduces the structure of local government established by the California Constitution. Part II discusses the general principles governing state preemption in California and examines the application of these principles to firearms. Part III suggests some specific types of local firearm regulation which will likely survive preemption challenges.
I. Local Power: The Benefits of a Charter
The power a California city or county possesses depends upon how the city or county fits into the structure established by Article XI of the California Constitution. Section 1 creates counties, which are "legal subdivisions of the State," and hence have no inherent, independent authority to act. [9] These "general law" counties possess only those powers expressly conferred upon them by the State. [10] Similarly, section 2 of Article XI provides for the establishment of "general law" cities with limited powers. [11]
These "general law" cities and counties are endowed with the power to make, within their boundaries, "all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." [12] This important provision places public health regulation within the power of local governments, provided such regulation does not conflict with state law. The California Supreme Court has determined that, under this provision, "a city's police power is as broad as that exercisable by the Legislature itself." [13] Ordinances enacted pursuant to this power are ordinarily upheld so long as [Page 399] they are "reasonably related to promoting the public health, safety, comfort, and welfare, and if the means adopted to accomplish that promotion are reasonably appropriate to the purpose." [14] By granting the "police power" to local governments, the Constitution implicitly acknowledges the importance of local regulation in protecting the public's health, safety, and welfare.
Article XI also permits cities or counties to enhance their power to self- govern beyond the broad police power of section 7. Section 3 allows cities and counties to adopt a charter, and provides that the terms of such a charter shall supersede "all laws inconsistent therewith," including state statutes. [15]
By adopting a charter, therefore, a city or county gains the authority to govern itself within the bounds set by its charter. In addition, charter cities, of which there are currently eighty-seven, [16] may make and enforce all ordinances and regulations "in respect to municipal affairs." [17] This broad "home rule" power is the primary benefit of adopting a charter. Extending far beyond the traditional police powers conferred by section 7, this provision permits chartered cities to act as they see fit in any area not treated by the Legislature as one of "statewide concern." [18] Local regulation properly adopted pursuant to this power takes precedence over conflicting state action, and thus remains open to local government regardless of the preferences of the state legislature. Thus, state-law preemption is not an issue when local regulation by a charter city concerns a "municipal affair."
Although it is not simple to determine whether a given local action is a "municipal affair," and hence within the exclusive province of the local government, the "bedrock inquiry" is whether there exists "a convincing basis for legislative action [by the State] originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations." [19] Under this rubric, it is insufficient for the state to assert [Page 400] that an area constitutes a matter of "statewide concern." Indeed, as stated by the California Supreme Court,
the fact, standing alone, that the Legislature has attempted to deal with a particular subject on a statewide basis is not determinative of the issue as between state and municipal affairs . . . stated otherwise, the Legislature is empowered neither to determine what constitutes a municipal affair nor to change such an affair into a matter of statewide concern. [20]
Rather, the court must determine whether the state's regulatory activity stems from statewide concerns incompatible with local regulation. [21]
Courts have upheld as "municipal affairs" things like local taxes imposed for local revenue purposes [22] and term limits for local elected officials. [23] However, the use of firearms by city police officers [24] and the use of city streets by police and fire vehicles [25] have been held not to constitute "municipal affairs" because of the need to protect transient citizens as well as city residents.
Local firearm regulation is unlikely to fall within the unfettered "municipal affairs" power of charter cities. Rather, most firearm regulation involves the police power conferred by Article XI, section 7. Local regulation adopted under this police power is subject to preemption by state law. [26] Therefore, local legislators and city and county attorneys must understand the contours of preemption as they consider adopting gun control measures.
II. Preemption of Local Firearm Regulation in California
A. General Principles of Preemption
The doctrine of preemption provides a set of guidelines for resolving conflicts arising from the existence of overlapping sovereignty. In a federal system of government, such conflicts occur when the federal and state governments seek simultaneously to regulate in a given area. The Supremacy Clause of the United States Constitution provides the foundation for the federal preemption doctrine by declaring that when such conflicts do arise, the federal Constitution and laws passed pursuant to its provisions are the "supreme Law of the Land." [27] The Supremacy Clause expresses a federal [Page 401] policy of resolving conflicts between federal and state law in favor of the federal government.
Similar conflicts may arise between state and local governments. Local governments, however, not recognized as sovereign by the federal constitution, acquire all of their regulatory power from the state, and the state can limit those powers as it deems appropriate. [28] In cases of conflict, therefore, state law displaces, or preempts, local regulation.
Given this policy of the supremacy of state law over conflicting local regulation, the preemption doctrine provides a framework for determining when such a conflict exists. Preemption occurs when a local government adopts a measure which: (1) duplicates state law, (2) contradicts state law, (3) enters a regulatory field in which the state has expressly stated a preemptive intent, or (4) enters an area in which the state has regulated sufficiently and comprehensively to imply preemptive intent.
A local government cannot adopt a regulation which duplicates state law, because to do so would create a conflict of jurisdiction between the locality and the state in cases of violation. [29] Nor can a local government adopt a regulation which contradicts, or "is inimical to," state law. [30] In either of these circumstances, the invalidity of local law arises not from any specific intention of the state legislature that local governments be barred from regulating, but from the effect that the local action would have on the state's ability to exercise its sovereignty. Although these types of preemption must be considered by anyone attempting to draft local regulation, they can generally be avoided by careful wording.
The other two types of preemption, however, are quite different in character from duplication and contradiction. Express and implied preemption arise when the state indicates a desire to prevent local governments from taking regulatory action in a given field. While preemption by duplication or contradiction occurs incidentally to the presence of competing sovereigns, implied and express preemption result from affirmative assertions by the state of its intent to bar local regulation in a given area. The state may make such an assertion expressly, by passing legislation which [Page 402] says, in so many words, that the state intends to preempt local regulation in a given area. Alternatively, the state may imply its preemptive intent, through the adoption of a comprehensive regulatory scheme which leaves no room for local action. By occupying a field of regulation in this manner, the state suggests that any gaps in its regulatory scheme are intentional, and therefore nothing remains for local governments to regulate.
In either case, however, it may not be obvious precisely what field the Legislature has preempted, nor how broad that field is. Disputes often arise between opponents and supporters of local action. The preemption doctrine comprises judicial efforts to resolve such disputes.
When the state adopts a statute expressing preemptive intent, the courts must determine the breadth of the field which the Legislature purports to preempt. Traditional rules of statutory construction guide the analysis of express preemption statutes. The courts generally read the preemption statute, compare its terms to the terms and effect of the ordinance in question, and simply decide whether the two involve the same regulatory field.
Implied preemption cases, on the other hand, present much more complicated issues, because the courts must draw inferences from the legislative scheme about the nature and breadth of the state's preemptive intent. Every statute fully occupies some regulatory field, i.e., the field directly covered by the statute's terms. In implied preemption cases, however, the courts must determine how far beyond the terms of the relevant statutes the occupied field extends. The courts have established a set of guidelines to aid them in resolving implied preemption cases, which one can use to evaluate the validity of local ordinances.
Judicial analysis of implied preemption derives from principles outlined by the California Supreme Court in In re Hubbard. [31] In Hubbard, the court prescribed a three-pronged test for evaluating whether state law implied a legislative intent to preempt local regulation, stating that such preemption occurs where:
(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law 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 general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient [Page 403] citizens of the state outweighs the possible benefit to the municipality. [32]
The court developed these tests from prior holdings concerning the permissible breadth of local regulation. For example, in Abbott v. City of Los Angeles, [33] the court discussed generally the conditions under which local governments could enact ordinances pursuant to the police power provision of Article XI, section 7. [34] Abbott concerned a Los Angeles ordinance requiring certain convicted criminals to register with local authorities. [35] The plaintiff, a conscientious objector, had been convicted of "failure to remain in a Civilian Public Service Camp." [36] He maintained that the ordinance conflicted with a provision of the California Penal Code which required registration only by sex offenders. [37]
Finding for the plaintiff, the court discussed at length the meaning of Article XI, section 7, noting first that "[t]he power granted by section [7] of Article XI is not only a delegation of power by the people to the local body, but it is also a limitation upon the local body." [38] Local power, the court said, is limited both by directly conflicting state law and by state regulation that fully occupies the field. [39] Quoting from its earlier ruling in Tolman v. Underhill, [40] the court stated: "'Where the Legislature has adopted statutes governing a particular subject matter, its intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme."' [41]
Applying this rule, the Abbott court analyzed the system of regulation of criminal conduct imposed by the state and determined that the scheme was sufficiently comprehensive to bar local governments from requiring registration of criminals not required to register under state law. [42] As a result, the Los Angeles ordinance was in conflict with the general law, and hence beyond the power conferred on the city by Article XI, section 7. [Page 404]
A similar analysis led to the rejection of another ordinance a few years later in In re Lane. [43] In Lane, the defendant challenged her arrest under a local ordinance which made it illegal for one person to engage in sexual intercourse with another person to whom she was not married. [44] Citing Abbott and Tolman, the court "look[ed] to the 'whole purpose and scope of the legislative scheme,"' and found that "[t]he Penal Code sections covering the criminal aspects of sexual activity are so extensive in their scope that they clearly show an intention by the Legislature to adopt a general scheme for the regulation of this subject." [45] Faced with such a scheme, the court struck down the local ordinance as preempted by state law.
In a detailed concurring opinion, Justice Gibson elaborated upon the rationale underlying implied preemption. After reviewing the relevant cases, Justice Gibson cautioned against the adoption of a "single, precise test" for evaluating implied preemption:
Rather, the courts must rely upon broad general principles which are flexible enough to embrace our varied and rapidly expanding body of legislation. Determination of the question depends primarily upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended to operate, and the intent of the Legislature is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme. [ Tolman] In order to hold that the field has been occupied, it is not necessary that the Legislature has specifically declared the scheme or policy in so many words, and the general intent may be found in a multiplicity of statutes taken together. [ Abbott] One of the factors stressed in the decisions is whether or not the subject calls for uniform treatment throughout the state [ Abbott and Tolman].
What has been said above makes it clear that whether the state has fully occupied the field with respect to any given subject depends upon considerations which will necessarily vary and must therefore be determined in every case without prejudging the result as to subjects not before the court. [46] [Page 405]
Despite Justice Gibson's cautious admonition, Lane generated tremendous doubt about the degree to which cities could continue to regulate matters of concern to them. [47] The Lane decision suggested that local regulation might be sharply curtailed in any area in which the state had acted. Alarmed by Lane's broad application of the doctrine of implied preemption, the League of California Cities, a statewide association of city attorneys, council members, and others, sought a legislative remedy. In January 1969, they thought they had found their champion in State Senator H. L. Richardson.
On January 7, 1969, Senator Richardson introduced Senate Bill 4 ("SB 4"), which proposed two additions to the Government Code. New section 9618 stated that "local, police, sanitary, and other regulations" authorized by the Constitution would be preempted by state law only if they duplicated or conflicted with state law, or if the state expressly occupied the field. [48] In other words, the bill sought to expunge the doctrine of implied preemption. New section 9619 limited the impact of section 9618 on regulations pertaining to public utilities and labor organizations. [49] According to a press release issued by Senator Richardson's office, the purpose of the new provisions was to "reinforce[ ] . . . the time-honored tradition of home rule," [Page 406] which was "seriously jeopardized" by the Lane decision. [50] Several local governments supported SB 4. [51]
However, the bill also prompted concern among gun enthusiasts who feared that the new sections would increase the ability of local governments to regulate firearms. The San Diego County Wildlife Federation, for example, a coalition of gun, fishing, and other sporting clubs, wrote to Senate Judiciary Committee chairman Donald L. Grunsky urging rejection of the bill if the state had not preempted the field of "gun legislation." [52]
In response to these concerns, the bill was amended on March 10, 1969. The amendment inserted language in section 9619 stating that section 9618 "shall not be deemed to authorize any political subdivision of the state . . . to regulate registration or licensing of commercially manufactured firearms . . . ." [53] This amendment barred local governments from imposing registration and licensing requirements beyond those which they could have imposed under general law prior to adoption of the bill. However, the bill retained its primary purpose of protecting the general power of local governments to fill the regulatory gaps left by state law.
B. The Galvan Case
In late April 1969, the California Supreme Court decided Galvan v. Superior Court. [54] Galvan presented the court with a preemption challenge to a San Francisco ordinance requiring the registration of most firearms within the city limits. [55] Before concluding that the ordinance was not preempted [Page 407] by state law, the court analyzed the state's regulatory scheme regarding firearms.
The primary relevant legislation was the California Dangerous Weapons Control Act, [56] which, among other things, expressly barred the imposition of any permit or licensing requirement on citizens wishing to keep a concealable firearm in their homes or businesses. [57] The court thus faced the question of whether San Francisco's registration requirement constituted a "permit or license" under the Penal Code. Noting that other sections of the Code recognized a difference in meanings of the words, "registration" and "licensing," the court held that the ordinance did not conflict with the Act. The court noted that if the Legislature had intended to prevent local bodies from adopting registration requirements, it could have easily said so.
The court next analyzed whether the array of statutes dealing with guns and other weapons occupied the entire field of weapons control. [58] Citing Abbott, Hubbard, and Lane, the court concluded that the state's regulatory scheme left various areas of weapons control open to local regulation. The court stated that "[t]he fact that there are numerous statutes dealing with guns or other weapons does not by itself show that the subject of gun or weapons control has been completely covered so as to make the matter one of exclusive state concern." [59] The court summarized its findings thus:
[W]e find that the Legislature has not adopted a uniform statutory scheme governing gun registration, that the absence of provisions governing registration does not reflect a legislative intent to prohibit local registration, that the San Francisco gun law imposes no undue burden on transients, and that the differing community needs for gun registration within the state justify local regulation of the subject. [60]
The court's last point about the need for local control is particularly instructive. The opinion elaborated on the rationale underlying this holding: 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. . . . We are persuaded by language in In re Hoffman: "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 [Page 408] proper, and even necessary, for municipalities to add to state regulations provisions adapted to their special requirements." [61]
Thus, a chief rationale for the court's interpretation of the breadth of the state scheme was the obvious fact that firearms require local control. In light of this fact, the court made absolutely clear that the state scheme permitted local regulation. The Galvan decision sent three clear signals to the California Legislature. First, the state's regulatory scheme regarding firearms would be read narrowly, in deference to the needs of local governments to address local problems related to the sale, possession, and use of firearms. This message indicated a retreat from the Lane decision, suggesting that local power remained intact to a greater degree than Lane implied. Second, Galvan raised the very real possibility of extensive local regulation of firearms, particularly in light of the court's explicit conclusion that the state's regulatory scheme was not sufficiently comprehensive to occupy the broad field of gun or weapons control. Third, the decision implicitly invited the Legislature to instruct the judiciary with an express statement of any intent by the state to occupy either the narrow field of firearm registration and licensing or the broad area of weapons control.
Soon after the Galvan decision, Keith Gaffney, then President of the California Rifle and Pistol Association, contacted Senator Richardson, who had long been an avid hunter and gun enthusiast. [62] Gaffney sought a "vehicle" for legislation preventing local governments from "screwing around with guns." [63] Senator Richardson had such a vehicle in SB 4. By tinkering with the language of SB 4, which had already proceeded through one committee, the Senator could get the measure adopted more rapidly than if he had to introduce new legislation.
On June 20, 1969, pursuant to this new strategy, SB 4 was again amended in the Senate Committee on Government Efficiency. This amendment removed the previously added firearms language from section 9619, which had noted the Legislature's intent not to expand local regulatory authority over firearm registration and licensing, [64] and recast it in a separate sentence at the end of the section:
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 regulations, relating to registration [Page 409] or licensing of commercially manufactured firearms, by any political subdivision as defined in Section 1721 of the Labor Code. [65]
As thus amended, the bill created a new, affirmative limitation on local power to regulate firearms, rather than merely declining to expand that power as the previous version had.
This amendment converted the bill into a clear reply to Galvan's invitation to the Legislature to express its intent to occupy the field of registration and licensing of firearms, though it conspicuously failed to express an intent to occupy the entire field of gun or weapon control. Moreover, the amendment reflected a specific, narrow exception to the bill's primary purpose of restoring the home rule which Lane had threatened to abolish. This perversion of the bill's original purpose set the stage for a dramatic finish which left local governments aghast.
Senator Richardson arranged for the introduction of one final amendment during consideration of SB 4 by the Assembly Committee on Civil Procedure. On August 1, 1969, that Committee approved a version of the bill which thoroughly gutted the original bill. [66] The Assembly version entirely deleted section 9618, the heart of the original effort to restore home rule by abolishing implied preemption. [67] Further, the Assembly version removed from section 9619 everything except the new provision expressly preempting firearm licensing and registration. [68] With this final modification, Senator Richardson and the gun lobby transformed SB 4 from a measure broadly protecting home rule into a provision expressly restricting it. This final version of the bill passed both houses and was signed into law by Governor Ronald Reagan on September 4, 1969. [69] The statute has been recodified, and is now Government Code section 53071.
According to former Senator Richardson, who founded Gun Owners of California in 1975 while still a senator, and who now chairs its board of directors, the new provision was intended to bar local governments from taking any action concerning firearms. [70] Although Galvan clearly indicated that "registration or licensing" was a much narrower field than "gun or weapons control," Richardson believed, and still believes, that the new statute's reference to "registration or licensing" adequately expressed his personal intent that the legislation occupy the entire field of gun control. [71] [Page 410]
The California courts, however, have uniformly found otherwise. In each of the few reported cases specifically addressing state preemption of local firearms regulation, the court has read Government Code section 53071 to occupy precisely the field which the statute claims on its face to occupy: the registration or licensing of firearms. The legislative history of the provision offers no support for Richardson's expansive interpretation of the narrowly worded statute, and the cases have properly declined to adopt the Senator's view. The following discussion examines those cases and explores the extent to which the state has preempted any other areas of firearms control.
C. Preemption of Local Firearm Regulation Since Galvan
1. Express Preemption
The first case to examine preemption of local firearm regulation following the adoption of Government Code section 53071 was Olsen v. McGillicuddy. [72] The case arose from an evidentiary ruling in a civil tort action brought by a minor plaintiff who was shot with a BB gun by his friend, the defendants' son. Olsen sought to introduce evidence that the McGillicuddys had violated a Petaluma ordinance prohibiting parents from allowing a minor in their care to possess or use a BB gun. The trial court, finding that the ordinance was preempted by state law and therefore invalid, excluded the evidence. [73]
The Court of Appeal reversed. [74] Citing Hubbard, the court stated that the question before it was "whether the state has so completely covered the subject of firearms generally that it has become exclusively a matter of state concern." [75] The court decided that the thirty-two state statutes dealing with firearms failed to indicate "that the state wished to exclude regulations by a municipality which considered more stringent regulation necessary in its particular community." [76] In other words, the state had not impliedly preempted local regulation of firearms.
The court turned next to express preemption under section 53071. After examining the legislative history of the statute, the court concluded that "[d]espite the opportunity to include an expression of intent to occupy the entire field of firearms, the legislative intent was limited to registration and licensing. We infer from this limitation that the Legislature did not intend to exclude municipalities from enacting further legislation concerning the [Page 411] use of firearms." [77] As the Petaluma ordinance did not involve registration or licensing, the court found that the statute did not preempt the ordinance. [78]
Like Galvan, Olsen invited the Legislature to respond if it intended to preempt the broad field of firearms or weapons control. In response to this invitation, the Legislature did indeed clarify its intent by adopting Government Code section 53071.5. [79] The new statute expressed the Legislature's intent to occupy the field of "imitation firearms," including the regulation of BB guns like the one involved in Olsen. [80] However, the Legislature let stand the judiciary's interpretation of Government Code section 53071 as only narrowly preemptive. Thus, despite two obvious invitations to express a broad preemptive intent, the Legislature did not do so. Rather, the Legislature twice expressed a narrow, circumscribed preemptive intent.
Similar reasoning led another court of appeal, in Sippel v. Nelder, [81] to strike down a San Francisco ordinance requiring anyone seeking to purchase a concealable firearm within the city first to get a permit from the city's police chief. [82] The court found that although section 53071 preempted only the narrow field of licensing and registration, the San Francisco ordinance entered this field by imposing an additional permit requirement. Consequently, the court concluded "that the ordinance here involved, insofar as it purports to regulate the licensing or registration of firearms, is invalid." [83] By linking the invalidity of the ordinance to its relation to licensing or registration, the court reinforced Olsen's narrow interpretation of the preemptive effect of section 53071.
The same appellate division which decided Olsen revisited the question a decade later in Doe v. City and County of San Francisco. [84] This time, San Francisco had banned possession of all handguns, with certain exceptions. [85] One exception exempted anyone with a state license to possess a handgun under Penal Code section 12050. [86] However, Penal Code section 12026 provided that "no permit or license . . . shall be required" of [Page 412] anyone possessing a handgun in his residence or place of business. [87] The court determined that San Francisco's ordinance, by exempting state licensees under section 12050 but not residential or business possessors under section 12026, imposed a de facto licensing requirement upon people wishing to possess handguns in their homes or businesses. [88] That is, the ordinance effectively banned residential or business possession unless the possessor brought himself within the exception by obtaining a state license. Noting that "in substance, [the statute] creates a licensing requirement where one had not previously existed," the court found the ordinance expressly preempted by Government Code section 53071. [89] As in Sippel, the link to licensing was a necessary precursor to a finding of express preemption, again reinforcing the narrow interpretation of section 53071.
The Doe court also found that San Francisco's broad handgun possession ban conflicted directly with Penal Code section 12026. [90] At the time, the relevant portion of that section read as follows:
Notwithstanding Section 12025 [defining the crime of "carrying a concealed firearm"], any citizen of the United States or legal resident over the age of 18 who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 [identifying classes barred from possessing firearms], shall not be prohibited from owning, possessing, keeping, or carrying, either openly or concealed, anywhere within the citizen's or legal resident'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 firearm within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident, shall be required of the citizen or legal resident. [91] [Page 413]
The court noted that the first clause of the statute "is intended to insure that Penal Code section 12025 is not misread as outlawing any form of possessing a firearm in a place of residence or place of business." [92] The court read the second clause, however, as a clear statement that the Legislature desired that no permit or licensing requirement be imposed upon residential or business handgun possession. Because the San Francisco ordinance would have required residential possessors to acquire a state license, the ordinance conflicted with the code provision. [93]
In 1995, the Legislature amended and clarified Penal Code section 12026. [94] First, the amendment split the substantive portion of section 12026 into two separate subsections and made subtle but important alterations in its terms. Section 12026(a) now begins, "Section 12025 shall not apply to or affect any citizen . . . ." [95] This rewording codifies the Doe court's interpretation that the initial clause limits only the application of section 12025, and is not a limitation on local regulatory power.
The Legislature then moved the prohibition on permit or license requirements to subsection 12026(b), and restructured the language of that prohibition. [96] Most significantly, the original statute had barred the imposition of permit or license requirements upon the ownership, purchase, possession, keeping, or carrying of "any" concealable firearm. The new subsection (b), however, precludes the imposition of a permit or license to purchase, own, possess, keep, or carry "a" concealable firearm. [97] Though the distinction between "a" and "any" appears rather fine, the change substantially alters the meaning of the section. The original language suggests that any requirement that interfered with the ability of a citizen or legal resident to purchase, own, possess, keep, or carry any specific type of handgun, regardless of the gun's characteristics, would conflict with the section. The amended version, however, appears to permit narrow regulation of specific firearms, so long as Californians retain the ability to purchase, own, possess, keep, or carry, at their residences or places of business, a handgun. Under this revised section, therefore, certain local regulations, such as a ban on the sale of particularly dangerous or poorly designed handguns, may not create a conflict. So long as citizens or legal residents remain reasonably able to purchase, own, possess, keep, or carry, at home or at work, a [Page 414] handgun, the imposition of regulations restricting access to specific handguns should not conflict with section 12026(b).
The three cases interpreting Government Code section 53071 reached the same conclusion about the breadth of the preemptive intent expressed in the statute. Despite the clear invitation offered by Galvan, and reiterated in Olsen, to the Legislature to occupy the entire field of firearms control, the Legislature declined to do so. Instead, it chose unambiguously to limit its express preemption to the narrow field of the registration or licensing of firearms. Beyond this closely circumscribed field, any limitation on local regulatory power must result from implied preemption.
2. Implied Preemption
Two of the three firearm preemption cases decided after the adoption of Government Code section 53071 found preemption in the express language of that statute. [98] The third, Olsen v. McGillicuddy, rejected a preemption challenge to an ordinance which did not enter the area expressly preempted by section 53071. [99] In other words, no California court has ever invalidated a local firearm ordinance on the basis of implied preemption.
However, two opinions of the Attorney General have suggested that proposed firearm ordinances would be impliedly preempted. These opinions are not binding on the courts, but their conclusions can influence the attitudes of local policymakers regarding the extent to which local governments remain free to regulate firearms. The first opinion was issued by Attorney General George Deukmejian in 1982, in response to a request from Senator Richardson. [100] In an apparent effort to forestall the adoption of the ordinance which was eventually challenged in Doe, Senator Richardson sought an opinion from the Attorney General about the viability of a hypothetical ordinance banning possession of handguns by anyone except law enforcement officers. Attorney General Deukmejian found that the hypothetical ordinance would be preempted by state law on two grounds. First, because the possession ban did not exempt [Page 415] people who were barred under state law from possessing handguns, the ordinance impermissibly duplicated state law. [101] This infirmity could easily be repaired by careful drafting, and does not pose a barrier to thoughtfully written ordinances.
However, the Attorney General also found that the hypothetical ordinance would be implicitly preempted, under each of the three tests outlined in Hubbard. [102] First, without citation to authority, the Attorney General determined that the presence of a smattering of state statutes concerning possession of various weapons, some of which included firearms, implied a legislative intent to occupy fully the field of firearm possession. While there is no case law directly contradicting this position, there is reason to believe that a court would find otherwise. [103] For example, in Gluck v. County of Los Angeles, [104] the Second District Court of Appeal, noting a trend in the cases toward deference to local authority even in the face of broad state regulation, advised thus: "The common thread of the [preemption] cases is that if there is a significant local interest to be served which may differ from one locality to another then the presumption favors the validity of the local ordinance against an attack of state preemption." [105] Accordingly, the courts have declined to hold that the mere presence of several state statutes is sufficient to preempt local regulation, particularly where the need for local regulation varies among communities. [106]
Rather, implied preemption has been found only when the context surrounding the relevant regulatory scheme indicates preemptive intent. [107] The Attorney General never discussed the presence of any indicator of preemptive intent, stating simply that "[t]he Legislature has been specific with respect to the types of firearms which may not be possessed." [108] Such specificity by the state could be construed to suggest preemptive intent, but [Page 416] it could also suggest, with equal force, an intention to leave the remainder of the field to local regulation. Without some contextual clue to the Legislature's intent, mere specificity cannot support a finding of implied preemption, particularly in a field in which regulatory interests "may differ from one locality to another." [109] Given Galvan's finding that firearm regulation is one such area, the Attorney General's conclusion seems difficult to justify. [110]
Having determined that the field of handgun possession was fully occupied by state legislation, the Attorney General also concluded, despite the obvious inconsistency, that the same field was partially covered by state law "couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action." [111] Deukmejian reasoned that the state statutes demonstrated a regulatory philosophy generally permitting possession but providing certain limitations upon it, which he asserted, again without support, could be imposed only "by operation of state law." [112] The hypothetical ordinance, however, followed a different regulatory philosophy, permitting possession only in specified circumstances. The Attorney General cryptically concluded that "the ordinance does not pass the second [ Hubbard] test because the ordinance approaches the problem from a direction contrary to that of the state law, and a conflict in jurisdiction and enforcement would be inevitable." [113]
This nebulous conclusion highlights the Attorney General's misunderstanding of the principles underlying implied preemption. To find preemption under Hubbard's second test, one must demonstrate that "the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action." [114] The Attorney General's opinion fails to identify any terms in the state statutory scheme which "indicate clearly" that possession of handguns constitutes a "paramount state concern" intolerant of local action. Indeed, the only suggestion that possession is a matter of state concern which "will not tolerate further or additional local action," comes from the Attorney General's unsupported, conclusory assertion that possession may be limited only "by operation of state law." [115]
In the absence of any demonstration that handgun possession is a paramount state concern which will not tolerate additional local action, the philosophical [Page 417] approach taken by the state legislature is irrelevant to an implied preemption analysis. The state's regulatory philosophy becomes relevant only when it indicates that the regulated matter is a paramount state concern which will not permit additional local action. The philosophical approach which Deukmejian attributed to the Legislature, that possession should be permitted except where the interests of the common good dictate otherwise, indicates nothing of the sort. Rather, the Attorney General apparently mistook his own conclusory comment about the operation of state law for an expression by the Legislature that possession of handguns was a matter of paramount state concern. When this circular reasoning is unwound, the Attorney General's opinion about the second Hubbard test becomes untenable.
Finally, the Attorney General concluded that the hypothetical ordinance also violated Hubbard's third test, which bars local action where the state has partially covered an area and "the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the community." [116] The Attorney General's very brief discussion of this point found only that "a burden would be placed on the transient citizens of this state if numerous cities were to enact ordinances in varying forms prohibiting handgun possession and numerous other cities were to remain silent on the issue, or affirmatively authorize possession of handguns." [117] However, the opinion says nothing about the extent which this burden "outweighs the possible benefit to the community." The third Hubbard test explicitly requires a balancing of interests, which the Attorney General simply failed to undertake. While a court may, after performing the required balancing, reach the same conclusion, this outcome is by no means assured, particularly given the rapidly accelerating rate of morbidity and mortality attributable to firearms in some communities. This trend could weigh rather heavily in favor of local regulation of possession under the third Hubbard test. Moreover, to reach agreement with Deukmejian, a court would have to ignore or reject Galvan's conclusion about the need for local regulation of firearms.
Much of this Attorney General's opinion suffers from deeply flawed logical and legal analysis, which results from a serious misunderstanding of the principles underlying the preemption doctrine. Faced with similarly flawed reasoning in another Attorney General's opinion on preemption, the [Page 418] California Supreme Court explicitly rejected the opinion's conclusions. [118] Although a court could reach the same conclusions, this opinion provides little, if any, persuasive argument supporting such conclusions. Indeed, as we have seen, the Doe court's rejection of San Francisco's handgun possession ban, just two months after the Attorney General issued his opinion, applied completely different logic. The Doe court struck down the ordinance on express preemption grounds, finding that the ordinance conflicted with Government Code section 53071 and Penal Code section 12026. [119] The Doe court referred to implied preemption only in its brief closing paragraph, noting in dicta its belief that Penal Code section 12026 occupied the field of residential handgun possession. [120] No court has found implied preemption of firearm possession after undertaking the analysis required by law, and the Attorney General's poorly reasoned opinion thus stands alone.
The second Attorney General's opinion addressing preemption of firearm regulation dealt with an ordinance proposed by the City of Pasadena, which sought to ban the sale of small-caliber (.22 to .45) ammunition commonly used in handguns, and to require registration of ammunition sales. [121] Attorney General Dan Lungren concluded that the registration requirement was permissible, but the sale ban was impliedly preempted by state law. [122]
Before reaching this conclusion, however, Lungren reached well beyond the scope of the question presented to him to address preemption of firearms sales. Whether the state has impliedly preempted firearms sales is irrelevant to an analysis of the ability of local governments to regulate ammunition sales. Nonetheless, Lungren gratuitously "found" that the field of firearms sales had been "so thoroughly occupied . . . that we have no doubt that regulating firearms sales is beyond the reach of local governments." [123] In support of this novel assertion, Lungren stated only that "cities and counties [Page 419] have been charged with the execution of the state's program for the licensing of firearms dealers, but their role is ministerial in nature." [124]
If this latter statement were true, it would indeed support Lungren's conclusion, because the nondiscretionary execution of state law by a local official would not alone bring the matter within local control. However, Lungren's assertion that local officials have only a "ministerial" role in executing the state's dealer licensing program under Penal Code section 12071 is false. Several provisions of section 12071 unambiguously acknowledge the discretion of local officials to regulate the sale of firearms. [125] The statute refers frequently to the "duly constituted licensing authority of a city, county, or a city and county." [126] To fall within the statute's definition of "dealer," a person must, in addition to meeting other requirements, have "any regulatory or business license, or licenses, required by local government." [127] While the local licensing authority must accept applications for firearms sales licenses, such authority may grant such licenses. [128] Thus, while the receipt of applications may properly be characterized as ministerial, the granting of licenses is unambiguously discretionary. The statute clearly contemplates local discretion both in the establishment of local requirements and in the issuance of licenses once those requirements have been satisfied. [129]
Other provisions of section 12071 also indicate that the Legislature intended not to occupy the field of firearms sales. For example, section 12071(a)(6) provides that a valid dealer's license must take one of several forms. Subsection (C) describes one acceptable form as "[a] letter from the duly constituted licensing authority having primary jurisdiction for the applicant's intended business location stating that the jurisdiction does not require any form of regulatory or business license or does not otherwise restrict or regulate the sale of firearms." [130] If the Legislature intended to occupy the field of firearms sales, it would not have included this provision in section 12071 because local jurisdictions would lack the power to restrict [Page 420] or regulate the sale of firearms. The statute also establishes an exemption from compliance with some of its provisions if "the licensee is unable to comply with those requirements because of local ordinances . . . ." [131] Again, the statute implicitly acknowledges the validity of local regulation of firearms sales.
On its face, section 12071 directly contradicts the Attorney General's assertion that the Legislature intended to occupy the field of firearms sales. The statute also clearly establishes that local officials play a discretionary, not ministerial, role in the regulation of firearms sales. In reaching beyond the scope of the question presented to him by an ammunition sales ordinance to address firearms sales, the Attorney General ignored the clear intent of section 12071 and mischaracterized its terms. Consequently, his conclusion that the state has preempted the field of firearms sales is entitled to little, if any, deference.
Turning to the issues properly before him, Attorney General Lungren determined that the proposed ordinance did not duplicate nor contradict any provision of state law. [132] Nor did he find any state provision expressly stating an intention to occupy the field of ammunition sales. [133] However, Lungren found that portions of the proposed ordinance were impliedly preempted by state law. [134]
Specifically, citing the implied preemption dicta from the Doe case, [135] Lungren found that two sections of the Penal Code, read together, indicated "that a paramount state concern will not tolerate further local action such as the proposed sales ban in question." [136] Penal Code section 12026 expressly permits possession of handguns on one's own private property, while Penal Code section 12304 bans the sale of ammunition larger than .60 caliber. [137] The Attorney General noted that section 12304 banned only large ammunition, because the Legislature intended that the handguns the possession of which it permitted under section 12026 should be functional. [138] Accordingly, the Attorney General concluded that a ban on the sale of all handgun ammunition would "thwart the Legislature's recognition of the right to possess handguns on private property." [139] [Page 421]
The primary importance of Lungren's analysis of this point derives not from what the opinion says, but from what it does not say. Rather than deciding that the state had occupied the field of ammunition sales, the Attorney General determined that "the Legislature has partially covered the field of ammunition sales and has indicated in section 12026 that a paramount state concern [i.e., residential or business possession of handguns] will not tolerate further local action such as the proposed sales ban in question." [140] The ordinance's apparent infirmity occurred not because the state had occupied the field of ammunition sales, but rather because of the likelihood that the ordinance would constitute a de facto ban on possession expressly permitted by section 12026.
By finding preemption only as a consequence of the proposed ammunition ban's indirect impact upon residential possession, Attorney General Lungren implied that narrower regulation of ammunition sales is permissible. The opinion strongly suggests that local governments retain the freedom to regulate ammunition sales in various ways, including the imposition of registration requirements, so long as the regulation does not tread upon a paramount state interest protected by state regulation in some other field. Nothing in this opinion inhibits the adoption of carefully drafted local ordinances regulating the sale of ammunition.
The two Attorney General's opinions dealing with state preemption of local firearms regulation fail persuasively to argue that the state has impliedly preempted any such regulation. No California court has ever held that a local firearm regulation was impliedly preempted by state law and the Legislature has expressly indicated its intent to bar local regulation only in two very narrow areas: the licensing and registration of firearms [141] and the permitting or licensing of possession of handguns in one's residence or place of business. [142]
III. Some Ideas for Local Regulation
The narrow limitations imposed on local governments by state firearms statutes leave considerable room for local regulation of many aspects of firearm violence. Some cities have taken bold steps already, and others have begun to consider the many options available to them. In some communities, however, gun lobby rhetoric has chilled rational discussion of responsible firearms regulation. This part of the Article describes generally several types of regulation, some of which have already been considered or [Page 422] adopted by California cities or counties, which may help to reduce the incidence of firearm-related morbidity and mortality in California communities. The current landscape of state regulation suggests that each of these approaches should withstand challenge alleging preemption by state law, although the politics of gun control and preemption make it impossible for one to be absolutely certain that such a challenge will fail. The particular public health needs of specific communities must, of course, dictate the regulatory approach taken to address those needs, but the following suggestions should provide a starting point for efforts to seek creative solutions.
A. Banning the Sale of "Saturday Night Specials"
Small, cheap, highly concealable handguns, known as "Saturday night specials" ("SNSs"), cannot be imported into the United States, [143] but domestic manufacturers, dominated by a single Southern California family, produce hundreds of thousands of SNSs each year. [144] Wide variation in the design and features of these firearms has hindered a precise definition of a Saturday night special. However, the Bureau of Alcohol, Tobacco and Firearms ("BATF"), charged with enforcement of the federal importation ban, has established a set of "factoring criteria" which provide a general definition. [145] Guns ineligible for importation generally have very short barrels (less than four inches), use small-caliber ammunition (.22, .25, and .380 ACP), and are made of lightweight materials (soft metal alloys or plastic). [146] These guns are too inaccurate and unreliable to be used for hunting or target shooting. [147] [Page 423]
However, because they are highly concealable, SNSs are ideal for use in crime. In 1994, seven of the ten guns most frequently traced by the BATF, and six of the top seven, were handguns manufactured by the six Southern California companies, known collectively as the "Ring of Fire." [148] A recent study of guns involved in homicides in Milwaukee, Wisconsin, found that one Ring of Fire handgun, the Raven Arms MP-25, "was the single most frequently identified handgun . . . ." [149] Although these small guns are less powerful than their larger and better-built cousins, these statistics suggest that the low cost and high concealability of SNSs make them particularly attractive to criminals.
Current California law supports the ability of local governments to ban the sale of these dangerous firearms. A few scattered provisions of state law regulate the sale of certain other particularly dangerous firearms, [150] but nothing in the statutory scheme suggests a legislative intent to preempt local regulation. Although Attorney General Lungren reached a different conclusion when considering an unrelated question, the basis for his position is known only to him because he failed to identify any support for his opinion. The cities of West Hollywood and Compton recently adopted ordinances banning the sale of SNSs. [151] Other cities, including Huntington Park and Los Angeles, are considering similar action. [152]
B. Regulations Restricting Firearm Dealers
In fiscal year 1993, the BATF recorded nearly 247,000 holders of federal firearms dealer's licenses ("FFLs"). Approximately seventy-five percent of FFL holders operate out of their homes, rather than out of storefronts. [153] These residential, or "kitchen table" dealers, frequently operate without the knowledge of their neighbors and may be located close to schools, churches, liquor stores, or other sensitive areas. In addition, many such dealers fail to comply with state or local licensing requirements, and [Page 424] hence operate with very little regulatory supervision. [154] Several California jurisdictions, including Sacramento, Lafayette, San Francisco, Oakland, and Contra Costa County, have adopted or are considering land-use ordinances imposing stringent requirements on firearms dealers to discourage residential dealing. Some of these ordinances require all dealers to install substantial security systems including alarms, bars on doors and windows, bright exterior lighting, and gun safes. [155] Some require dealers to carry large liability insurance policies to protect against the risk of injury to adjoining landowners from the operations of a firearms business in a residential neighborhood. [156] A jurisdiction could also bar the issuance of new licenses to dealers within 1,000 or 1,500 feet of a sensitive area, which could include schools, day care centers, churches, parks, playgrounds, other firearms dealers, bars, or liquor stores.
These land-use regulations serve several purposes. Security requirements reduce the likelihood that guns will be stolen from residential dealers, restricting one potential source of guns used in crimes. Liability insurance requirements place upon the dealer the economic burden of injury to property or people from the conduct of a firearms dealership. Each of these restrictions inhibits unregulated residential dealing because of the costs associated with compliance. "Sensitive area" regulations reduce both the density of firearms dealers and the availability of firearms in places where children or other vulnerable populations congregate.
The volume of federally licensed residential firearms dealers, coupled with their relative invisibility to their neighbors and local authorities, creates a potentially huge source of firearms for minors, felons, and other prohibited purchasers. While most residential firearms dealers do not sell guns to prohibited purchasers, the public health danger posed by those who do favors restricting residential dealing.
C. Regulation of Ammunition
As demonstrated above, local governments retain considerable latitude in regulating ammunition, so long as the regulation does not constitute a de facto ban on protected possession. [157] Registration requirements can help keep track of ammunition purchases and may deter illegal sales to minors or [Page 425] other prohibited possessors of firearms. In addition, when ammunition becomes traceable, using technology currently under development, jurisdictions with registration requirements already in place will be able to identify the last legal purchaser of ammunition used in crimes. [158] Local governments may also have the power to regulate the sale of specific types of ammunition. Despite his belief that a complete ban on ammunition sales would be preempted by Penal Code section 12026, even Attorney General Lungren stopped short of claiming that the state legislature had occupied the field of ammunition sales. [159] Current California law permits municipalities to restrict the sale of ammunition with particularly problematic characteristics. [160]
D. Taxation of Firearms Dealers
Another approach, which avoids the preemption question completely, is the imposition of a business tax on firearms dealers. The California Business & Professions Code empowers all counties and incorporated cities to "fix the license fee" for legal businesses. [161] Under a similar power deriving from its charter, San Francisco recently imposed a three percent tax on the gross receipts of firearms dealers. [162] Note that such a tax applies not just to receipts from firearms sales, but to the total receipts of any business which sells firearms. Thus, a sporting goods store which sells firearms would pay the tax on its sales of basketballs, shoes, and bathing suits.
This brief sample of local regulatory strategies comprises only a few possible approaches. Many other creative alternatives fall within the traditional regulatory power of local government because of the narrow scope of preemption. Of course, city and county attorneys must independently evaluate the validity of each proposed solution, but the gun lobby's expansive [Page 426] rhetoric about preemption ought not unduly hinder the development of effective local regulation.
Conclusion
Like other public health problems, the firearm injury epidemic demands local action to reduce the incidence of firearm-related injury and death. The tragedy of firearm injury would be compounded if the gun lobby were successful at tying the hands of local governments seeking to address the problem. Fortunately, however, the gun lobby's anti-control rhetoric greatly overstates the actual preemptive effect of current California law. Along with myriad other traditional public health powers, local governments in California retain broad power to deal with the public health impact of firearm violence.
Short of a complete ban on the possession and use of firearms, particularly handguns, no single intervention will end the epidemic. However, each time a local government acts to protect its citizens from the growing epidemic of firearm injury, the likelihood of effective control increases. Of course, the effectiveness of these and other regulations that have been adopted or considered in communities around the state depends in large part upon the cooperation of adjacent communities. Lax regulation next door reduces the impact of otherwise effective regulation at home. By debunking the broad- preemption myth, I hope to encourage local governments concerned about the health impact of firearms to join with their neighbors to protect all Californians from this devastating epidemic.
* Legal Director, Trauma Foundation, San Francisco, Cal.; Chair, Local Ordinance Committee, Legal Community Against Violence, San Francisco, Cal. J.D., Georgetown University Law Center, 1994; M.P.H., Johns Hopkins University School of Hygiene and Public Health, 1994; B.A., Cornell University, 1988. I appreciate the generous support and assistance of the Trauma Foundation, the Pacific Center for Violence Prevention, and the following individuals: Scott Emblidge, Dennis Henigan, Mark Pertshuck, Jon Vernick, Stephen Teret, and Andrew and Kae McGuire. Most importantly, I gratefully acknowledge the untiring support, sound advice, and constant encouragement of my wife, Jennifer S. Gorovitz, and Judie and Samuel Gorovitz, Heidi and Peter Robertson, and Ted and Joelle Steefel.
The analysis presented herein derives in part from research performed in 1992 by the author while an intern at the Center to Prevent Handgun Violence in Washington, D.C.
[1]. Centers for Disease Control & Prevention, Firearm and Motor Vehicle Injury Mortality -- Variations by State, Race, and Ethnicity: United States, 1990-91, 242 Advance Data 1 (1994). In California, in 1991, the ratio of firearm deaths to motor vehicle deaths was 1.01. Id. at 5. The other jurisdictions and their respective ratios were: New York (1.13), District of Columbia (5.21), Virginia (1.02), Louisiana (1.27), Texas (1.15), and Nevada (1.22). Id. Maryland had a ratio of 1.00 in 1991, down slightly from 1.06 in 1990. Id. To some extent, this trend results from the adoption of a broad array of effective public health interventions targeting motor vehicle crashes (e.g., vehicle design changes, legal prohibitions and requirements, educational efforts, etc.). Id. at 4. However, firearm death rates have been increasing more and more rapidly over the past decade. Id. at 1.
[2]. Contra Costa County Health Services Department Prevention Program, Taking Aim at Gun Dealers: Contra Costa's Public Health Approach to Reducing Firearms in the Community 2 (1995).
[3]. Centers for Disease Control & Prevention, Deaths Resulting From Firearm- and Motor-vehicle-related Injuries -- United States, 1968-1991, 43 Morbidity and Mortality Weekly Report 37 (1994).
[4]. Over the last 50 years, analysis of injury in general as a public health problem has become quite sophisticated. Sue Baker et al., The Injury Fact Book at ix (1992). Much of this increased sophistication derives from the work of William Haddon, Jr., who developed a conceptual framework for analyzing injury as a public health problem. See, e.g., William Haddon, Jr., Advances in the Epidemiology of Injuries as a Basis for Public Policy, 95 Pub. Health Rep. 411 (1980). In the context of firearm injury, potential interventions derived from public health theory include the adoption of design modifications intended to reduce the incidence of unintentional shootings (e.g., personalization of firearms or the inclusion of prominent chamber-loaded indicators), restrictions on access to firearms by high-risk individuals (e.g., the Brady Handgun Violence Prevention Act), and limitations on the availability of particularly high-power firearms (e.g., banning assault weapons).
[5]. In 1993, the California Department of Health Services recorded 5,446 deaths due to firearms. California Department of Health Services, Death Records (1993) [hereinafter Death Records] (unpublished data, on file with the University of San Francisco Law Review). Thirty-seven percent of these deaths (2,042) were firearm suicides, while 58% (3,164) were homicides. Id. The California Department of Finance estimated the state's population on January 1, 1994, at 31,961,000. California Department of Finance, Population Estimates for California Cities and Counties, Report 94 E-1, at 1 (May 1994) [hereinafter Population Estimates]. Combining these two pieces of data yields a statewide firearm death rate of 17.04 deaths per 100,000 citizens. However, the county death rates, calculated by the author from the same sources, range from zero in Alpine and Sierra Counties to 44.64 in Mono County. Among the eight most populated counties (Alameda, Los Angeles, Orange, Riverside, Sacramento, San Bernardino, San Diego, and Santa Clara), firearm death rates ranged from 7.43 in Santa Clara County to 23.56 in Los Angeles County. In addition, the relative contributions of suicide and homicide vary dramatically. In many small counties, like Mono, Inyo, and Modoc, each of which had fewer than 20,000 residents in 1993, most firearm deaths during that year were suicides. In seven of the eight biggest counties, however, each of which had over 1 million residents, homicides were the dominant contributor. The only exception was San Diego County, which had slightly higher rates from suicides (6.66 per 100,000) than from homicides caused by firearms (6.29 per 100,000).
[6]. Both the California Constitution and state judicial decisions recognize the importance of local power to regulate to protect the health and welfare of the public. See infra part I.
[7]. Analysis of Second Amendment law is well beyond the scope of this Article. However, judicial interpretations of the meaning of the Second Amendment uniformly conclude that the Amendment applies only to the activities of the well-regulated state militia and not, as the NRA would have us believe, to the possession of firearms by private citizens. See, e.g., United States v. Miller, 307 U.S. 174, 178-79 (1939) (holding Second Amendment does not protect the right to bear a weapon unless there is "some reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992) (holding Second Amendment does not guarantee individual possession of military weapons), cert. denied, 113 S. Ct. 1614 (1993); Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir. 1990) (upholding Congress' ban on machine gun sales to private citizens, including police officers, unless authorized by the state, without reference to the Second Amendment), cert. denied, 498 U.S. 1047 (1991); United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (holding there is no fundamental right to possess weapons, and statute forbidding possession of firearms by illegal aliens does not violate the Equal Protection Clause of the Fifth Amendment); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (holding Second Amendment does not guarantee the right of private citizens to bear personal handguns), cert. denied, 464 U.S. 863 (1983); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) (holding the Second Amendment does not protect the possession of unregistered firearms by members of non-governmental militia organizations, nor by persons technically members of a state's statutory militia), cert. denied, 435 U.S. 926 (1978); Marchese v. California, 545 F.2d 645, 647 (9th Cir. 1976) (holding California law prohibiting possession of handguns by felons does not violate the Equal Protection Clause of the Fourteenth Amendment); United States v. Warin 530 F.2d 103, 106 (6th Cir.) (holding Second Amendment guarantees a collective right of the State to maintain a militia, but membership in a sedentary militia does not exempt an individual from state law prohibiting possession of unregistered firearms), cert. denied, 426 U.S. 948 (1976); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) ("[T]he Second Amendment only confers a collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well-regulated militia."'); Cases v. United States, 131 F.2d 916, 921-22 (1st Cir. 1942) (holding the prohibition on the federal government is not absolute; Congress may prohibit the possession of weapons in some circumstances), cert. denied, 319 U.S. 770 (1943). Furthermore, recent case law has established that the modern incarnation of the militia referred to in the Second Amendment is the National Guard. Perpich v. Department of Defense, 496 U.S. 334, 348 (1990).
[8]. For example, the Northern California town of Lafayette recently enacted an ordinance which sought to address Lafayette's high number of "kitchen-table" gun dealers. Lafayette, Cal., Ordinances tit. 6, ch. 8-6 (1994). Such dealers sell firearms from their homes in residential neighborhoods. The Lafayette ordinance imposes stringent security and insurance requirements on anyone selling firearms within the city. Id. Several "kitchen-table" dealers represented by an attorney connected with the Second Amendment Foundation, filed suit seeking to bar enforcement of the ordinance. A primary basis for the challenge was the argument that such local regulation was preempted by state law. The trial court rejected that argument in the very early stages of the litigation. Suter v. City of Lafayette, No. C 94-05444 (Contra Costa Super. Ct. filed Dec. 21, 1994). An appeal is likely.
[9]. Cal. Const. art. XI, s 1.
[10]. Younger v. Board of Supervisors, 155 Cal. Rptr. 921, 924-25 (Ct. App. 1979).
[11]. Cal. Const. art. XI, s 2.
[12]. Id. s 7.
[13]. Birkenfeld v. City of Berkeley, 550 P.2d 1001, 1009 (Cal. 1976).
[14]. Barry v. City of Oceanside, 165 Cal. Rptr. 697, 699 (Ct. App. 1980).
[15]. See Cal. Const. art. XI, s 3; see also Younger v. Board of Supervisors, 155 Cal. Rptr. 921, 925 (Ct. App. 1979).
[16]. Telephone Interview with League of California Cities (Aug. 8, 1995). Thirteen of the state's 58 counties have adopted charters. Telephone Interview with California State Ass'n of Counties (Aug. 8, 1995).
[17]. Cal. Const. art. XI, s 5. Charter counties have less expansive "home rule" powers. Dibb v. County of San Diego, 884 P.2d 1003, 1007 (Cal. 1994); see also Cal. Const. art. XI, s 4(e).
[18]. Johnson v. Bradley, 841 P.2d 990, 996-97 (Cal. 1992); California Fed. Sav. & Loan Ass'n v. City of L.A., 812 P.2d 916 (Cal. 1991). These cases expound upon the "inherent ambiguity" of the terms "municipal affair" and "statewide concern."
[19]. California Fed. Sav. & Loan, 812 P.2d at 926 (emphasis added).
[20]. Bishop v. City of San Jose, 460 P.2d 137, 141 (Cal. 1969).
[21]. Id.
[22]. Weekes v. City of Oakland, 579 P.2d 449 (Cal. 1978).
[23]. Cawdrey v. Redondo Beach, 19 Cal. Rptr. 2d 179 (Ct. App. 1993).
[24]. Long Beach Police Officers Ass'n v. City of Long Beach, 132 Cal. Rptr. 348 (Ct. App. 1976).
[25]. Lossman v. City of Stockton, 44 P.2d 397 (Cal. Ct. App. 1935).
[26]. See discussion infra part II.A.
[27]. U.S. Const. art. VI, s 2. The section reads:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Id.
[28]. Stephen P. Teret & Tom Christoffel, Protecting the Public: Legal Issues in Injury Prevention 88 (1993).
[29]. Pipoly v. Benson, 125 P.2d 482 (Cal. 1942).
[30]. Ex parte Daniels, 192 P. 442 (Cal. 1920).
[31]. 396 P.2d 809 (Cal. 1964), overruled on other grounds by Bishop v. City of San Jose, 460 P.2d 137 (Cal. 1969).
[32]. Id. at 815 (emphasis added); see also Sherwin-Williams Co. v. City of L.A., 844 P.2d 534, 537 (Cal. 1993).
[33]. 349 P.2d 974 (Cal. 1960).
[34]. At the time, this provision was codified as Cal. Const. art. XI, s 11. Some of the sections of Article XI were renumbered in 1970. Id. at art. XI historical notes.
[35]. 349 P.2d at 975 & n.1.
[36]. Id. at 976.
[37]. Id. at 976-77.
[38]. Id. at 979.
[39]. Id.
[40]. 249 P.2d 280, 283 (Cal. 1952) (striking down local loyalty oath requirement as preempted by state law).
[41]. Abbott, 349 P.2d at 981 (quoting Tolman, 249 P.2d at 282).
[42]. Id. at 981-84.
[43]. 372 P.2d 897 (Cal. 1962).
[44]. The ordinance in question provided:
No person shall resort to any office building or to any room used or occupied in connection with, or under the same management as any cafe, restaurant, soft- drink parlor, liquor establishment or similar business, or to any public park or to any of the buildings therein or to any vacant lot, room, rooming house, lodging house, residence, apartment house, hotel, housetrailer, street or sidewalk for the purpose of having sexual intercourse with a person to whom he or she is not married, or for the purpose of performing or participating in any lewd act with any such person.
Id. at 898 (quoting Los Angeles, Cal., Mun. Code s 41.07).
Ms. Lane was convicted for having gone "from her living room to her bedroom in her own home for the purpose of having sexual intercourse with a male to whom she was not married." Id. (emphasis added).
[45]. Id. at 899.
[46]. Id. at 903 (Gibson, J., concurring) (footnote and citations omitted).
[47]. See, e.g., 14 L.A. City Code Sections Hit By High Court Ruling, L.A. Daily J., Dec. 28, 1961, at 1, 9 (indicating Los Angeles City Attorney's belief that Lane decision invalidates many city code provisions and "infring[es] upon the home rule provided for by the constitution").
[48]. Proposed s 9618 stated:
A statute shall not be construed to interfere with or preclude local, police, sanitary, and other regulations authorized by Section [7] of Article XI of the Constitution and local regulations shall be permitted notwithstanding a statute on the same or related subject, except only in the following cases:
1. When the regulation duplicates general law.
2. When the regulation authorizes or purports to authorize that which is expressly prohibited by general law.
3. When the regulation prohibits or purports to prohibit that which is expressly authorized by general law.
4. When there is a comprehensive scheme of legislation on the same subject by general law, and such general law: (a) Expressly provides that it has occupied the entire field of such legislation; or (b) Expressly prohibits other and further regulation in the field of such legislation.
S.B. 4, s 9618 (proposed Jan. 7, 1969).
[49]. Proposed s 9619 stated:
Section 9618 shall not be deemed to authorize any political subdivision of the state, as defined in Section 1721 of the Labor Code, to regulate water districts or agencies or any public utility or related business regulated by the Public Utilities Code, or any public district rendering a utility service, except as such subdivision could lawfully regulate prior to the effective date of Section 9618. Section 9618 shall not be construed to be applicable to any labor organization nor to any activity or conduct of any labor organization with respect to any individual or entity, including but not limited to, its members, the public, or any private or public employer.
S.B. 4, s 9619 (proposed Jan. 7, 1969).
[50]. Press release from the Office of Senator H. L. Richardson (Jan. 7, 1969) (on file with the University of San Francisco Law Review).
[51]. The County of Santa Barbara Board of Supervisors adopted Resolution 69-75 urging passage of the bill. Similar statements of support came from the City of West Covina, the City of Burbank, and the Southern California City Attorneys Ass'n. These statements are contained in the files of the Senate Judiciary Committee (on file with the University of San Francisco Law Review).
[52]. Letter from George Pratt, Chairman of the Legislative Committee, San Diego County Wildlife Federation, to Senator Donald Grunsky (Feb. 27, 1969) (on file with the University of San Francisco Law Review).
[53]. S.B. 4, s 9619 (amended Mar. 10, 1969).
[54]. 452 P.2d 930 (Cal. 1969).
[55]. San Francisco Ordinance No. 175-68 provided: (1) it shall be unlawful for any person within San Francisco to own, possess, or control an unregistered firearm; (2) any person temporarily in San Francisco must register firearms brought with him within seven days after arrival; (3) the registration application shall include the name and address of the owner, and a description of the firearm; the registration fee shall be $2.00; (4) the Chief of Police upon registering a firearm shall issue a certificate of ownership, which shall remain valid "until suspended, revoked, or cancelled by the Chief of Police for cause ...."; (5) on transfer of firearm ownership, the transferee must apply for a transfer of ownership; (6) the penalty for violation of the law is a fine of $500 or six months in jail or both; (7) the clauses are severable. Id. at 932-33 n.1 (citing San Francisco, Cal., Ordinance No. 175-68).
[56]. Cal. Penal Code ss 12000-12809 (West 1992 & Supp. 1996).
[57]. Cal. Penal Code s 12026.
[58]. The plaintiff in Galvan cited provisions of the California Fish and Game, Health and Safety, Penal, Public Resources, and Vehicle Codes. 452 P.2d at 936 n.4.
[59]. Id. at 936.
[60]. Id. at 940.
[61]. Id. at 938-39 (citation omitted) (quoting Ex parte Hoffman, 99 P. 517, 519 (Cal. 1909)).
[62]. Telephone Interview with H. L. Richardson (Aug. 3, 1995).
[63]. Id.
[64]. See supra note 53 and accompanying text.
[65]. S.B. 4, s 9619 (amended June 20, 1969).
[66]. Id. (amended Aug. 1, 1969).
[67]. Id.
[68]. Id.
[69]. Act of Sept. 4, 1969, ch. 1428, 1969 Cal. Stat. 2932-33 (codified at Cal. Gov't Code s 53071 (West 1983)).
[70]. See Telephone Interview with H. L. Richardson, supra note 62.
[71]. Id.
[72]. 93 Cal. Rptr. 530 (Ct. App. 1971).
[73]. Id. at 531.
[74]. Id. at 534.
[75]. Id. at 532.
[76]. Id.
[77]. Id.
[78]. Id.
[79]. Cal. Gov't Code s 53071.5 (West Supp. 1996).
[80]. Id.
[81]. 101 Cal. Rptr. 89 (Ct. App. 1972).
[82]. Id. at 90-91.
[83]. Id. at 91 (emphasis added).
[84]. 186 Cal. Rptr. 380 (Ct. App. 1982).
[85]. Id. at 381. The ordinance in question exempted "peace officers, members of the military while engaged in the performance of their duties, persons using licensed target ranges, certain licensed collectors, certain licensed guards and special peace officers, and persons engaged in business and possessing handguns within fixed places of business." Id.
[86]. At the time, Penal Code s 12050 read as follows:
Issuance: (a) The sheriff of a county or the chief or other head of a municipal police department of any city or city and county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying is a resident of the county, may issue to such person a license to carry concealed a pistol, revolver, or other firearm for any period of time not to exceed one year from the date of the license, or in the case of a peace officer appointed pursuant to Section 830.6, three years from the date of the license. (b) A license may include any reasonable restrictions or conditions which the issuing authority deems warranted, including restrictions as to the time, place and circumstances under which the person may carry a concealed firearm. (c) Any restrictions imposed pursuant to subdivision (b) shall be indicated on any license issued on or after the effective date of the amendments to this section enacted at the 1970 Regular Session of the Legislature. Cal. Penal Code s 12050.
[87]. Id. s 12026.
[88]. Doe, 186 Cal. Rptr. at 384.
[89]. Id.
[90]. Id. at 385.
[91]. Cal. Penal Code s 12026 historical and statutory notes.
[92]. 186 Cal. Rptr. at 385.
[93]. Id.
[94]. Act of Aug. 3, 1995, ch. 322, s 1, 1995 Cal. Legis. Serv. 1571, 1572 (West) (codified at Cal. Penal Code s 12026).
[95]. Cal. Penal Code s 12026(a).
[96]. See id. s 12026(b).
[97]. Id.
[98]. Doe v. City and County of S.F., 186 Cal. Rptr. 380, 384 (Ct. App. 1982); Sippel v. Nelder, 101 Cal. Rptr. 89, 89-90 (Ct. App. 1972). The Doe court stated in dicta that in adopting Penal Code s 12026, which bars the imposition of any license or permit requirement on residential or business possession of a handgun, "the Legislature intended to occupy the field of residential handgun possession to the exclusion of local government entities." 186 Cal. Rptr. at 385. The court explained this conclusion simply by stating: "It strains reason to suggest that the state legislature would prohibit licenses and permits but allow a ban on possession." Id. However, assuming, arguendo, that a complete possession ban would be impliedly preempted, the court's reliance upon s 12026 suggests that a ban which exempted residential possession would survive.
[99]. 93 Cal. Rptr. 530, 533 (Ct. App. 1971).
[100]. 65 Cal. Op. Att'y Gen. 457 (1982).
[101]. Id. at 459. The ordinance eventually struck down in Doe similarly failed to exempt from the ban those barred under state law from possessing handguns, but the Doe court never addressed the duplication question. 186 Cal. Rptr. at 381.
[102]. 65 Cal. Op. Att'y Gen. at 463-65; see also supra text accompanying note 32.
[103]. Recall that Galvan found no implied preemption of the fields of firearm registration and licensing, nor weapons control. See supra part II.B.
[104]. 155 Cal. Rptr. 435 (Ct. App. 1979).
[105]. Id. at 441.
[106]. Id.; see, e.g., Galvan v. Superior Court, 452 P.2d 930, 936 (Cal. 1969) (finding no implied preemption of local firearm registration requirement despite numerous state statutes dealing with firearms); People v. Butler, 59 Cal. Rptr. 924, 925 (Ct. App. 1967) (finding no implied preemption of local regulation of alcohol consumption despite comprehensive statewide scheme).
[107]. In re Lane, 372 P.2d 897, 898-99 (Cal. 1962); Abbott v. City of L.A., 349 P.2d 974, 979 (Cal. 1960); Butler, 59 Cal. Rptr. at 925.
[108]. 65 Cal. Op. Att'y Gen. 457, 463 (1982).
[109]. Gluck, 155 Cal. Rptr. at 441.
[110]. See supra note 61 and accompanying text.
[111]. 65 Cal. Op. Att'y Gen. at 464.
[112]. Id.
[113]. Id. at 464-65.
[114]. In re Hubbard, 396 P.2d 809, 815 (Cal. 1964) (emphasis added).
[115]. 65 Cal. Op. Att'y Gen. at 464.
[116]. Id. at 463; see also Hubbard, 396 P.2d at 815.
[117]. 65 Cal. Op. Att'y Gen. at 465.
[118]. Candid Enters., Inc. v. Grossmont Union High Sch. Dist., 705 P.2d 876, 884 (Cal. 1985) (rejecting as "erroneous" the conclusions of the Attorney General in an opinion, 62 Cal. Op. Att'y Gen. 601 (1979), finding preemption under the School Facilities Act).
[119]. Doe v. City and County of S.F., 186 Cal. Rptr. 380, 383-85 (Ct. App. 1982).
[120]. Id. at 385.
[121]. 77 Cal. Op. Att'y Gen. 147 (1994).
[122]. Id. at 152.
[123]. Id. at 150 (citing Fisher v. City of Berkeley, 693 P.2d 261, 310-11 (Cal. 1984), aff'd, 475 U.S. 260 (1986)). Fisher involves rent regulation, not gun control, and the passage cited by Lungren's opinion states: "A potentially preemptive 'field' of state regulation is 'an area of legislation which includes the subject of the local legislation, and is sufficiently logically related so that a court, or a local legislative body, can detect a patterned approach to the subject."' 693 P.2d at 310 (quoting Galvan v. Superior Court, 452 P.2d 930, 937 (Cal. 1969)). This procedural statement merely assists a court in defining the breadth of a given field. It provides no support for Lungren's condemnation of local regulation of firearms sales.
[124]. 77 Cal. Op. Att'y Gen. at 150 (citing Cal. Penal Code s 12071).
[125]. Cal. Penal Code s 12071(a)(1)(B), (a)(2), (a)(6)(C), (b)(15), (d).
[126]. Id.
[127]. Id. s 12071(a)(1)(B).
[128]. Id. s 12071(a)(2).
[129]. Indeed, in an informal opinion to State Senator Steve Peace, Deputy Attorney General Gregory Gonot recently pointed out that, because "no statutory restrictions are placed upon the substantive conditions which the city or county elects to impose upon business licenses issued to firearms dealer ... the imposition by a city or county of local conditions for the licensure of firearms is not preempted by state law." Indexed Letter 95-507, at 3 (Sept. 20, 1995) (on file with the University of San Francisco Law Review). Such affirmative local regulatory control cannot be described as "ministerial."
[130]. Cal. Penal Code s 12071(a)(6)(C) (emphasis added).
[131]. Id. s 12071(d).
[132]. 77 Cal. Op. Att'y Gen. 147, 151 (1994).
[133]. Id.
[134]. Id. at 147, 151-53.
[135]. Id. at 151-52 (citing Doe v. City and County of S.F., 186 Cal. Rptr. 380, 385 (Ct. App. 1982)).
[136]. Id.
[137]. Id.
[138]. Id.
[139]. Id.
[140]. Id. (emphasis added).
[141]. See Cal. Gov't Code s 53071 .
[142]. See Cal. Penal Code s 12026.
[143]. Garen Wintemute, Ring of Fire: The Handgun Makers of Southern California 11 (1994). The handgun murder of Robert F. Kennedy led to the adoption of the Gun Control Act of 1968, which included among its provisions a ban on the importation of guns without any "legitimate sporting purpose." Pub. L. No. 90-618, 82 Stat. 1213 (codified at 18 U.S.C. s 925(d)(3) (1994)). Because SNSs are too inaccurate and unreliable for hunting or target shooting, they fall within this prohibition.
[144]. The six Southern California companies, five of which were founded by members or old friends of the Jennings family, are: Arcadia Machine and Tool, Inc. (Irwindale, Cal.), Bryco Arms, Inc. (Costa Mesa, Cal., founded by Bruce Jennings), Davis Industries (Chino, Cal., founded by Jim Davis and his wife, Gail Jennings Davis), Lorcin Engineering Co., Inc. (Mira Loma, Cal., founded by Jim Waldorf, Bruce Jennings' high school friend), Phoenix Arms (Ontario, Cal., successor to Raven Arms, which had been founded by George Jennings, the father of Bruce Jennings and Gail Jennings Davis), and Sundance Industries (Valencia, Cal., founded by George Jennings' nephew). See Wintemute, supra note 143, at 5-9; see also Alix M. Freedman, Fire Power: Behind the Cheap Guns Flooding the Cities is a California Family, Wall St. J., Feb. 28, 1992, at A1.
[145]. Bureau of Alcohol, Tobacco and Firearms, Factoring Criteria for Firearms, BATF Form 4590 (Dec. 1983).
[146]. Id.
[147]. SNSs are so inaccurate, according to one commentator, that they are referred to on the street as "belly guns" because, to be effective, they must be placed directly against the belly of the victim. Michael Rodriguez, Youth's Biggest Killer -- The "Belly Gun", S.F. Examiner, June 15, 1995, at A23; see also supra note 143.
[148]. Marianne W. Zawitz, Guns Used in Crime, Bureau of Justice Statistics, Selected Findings 5 (July 1995); see also supra note 144.
[149]. Stephen Hargarten et al., Characteristics of Firearms Used in Fatalities, 275 J. Am. Med. Ass'n 42, 43 (1996).
[150]. See, e.g., Cal. Penal Code ss 12280, 12287 (assault weapons); id. s 12020 (sawed-off shotguns, zip guns); id. s 12435 (tear gas weapons).
[151]. West Hollywood, Cal., Mun. Code s 4122 (1996); Compton, Cal., Mun. Code s 7-4.8 (1996). On February 16, 1996, the West Hollywood ordinance was challenged in a lawsuit brought by the NRA and the California Rifle and Pistol Ass'n. See California Rifle and Pistol Ass'n v. City of W. Hollywood, No. BC144600 (L.A. Super. Ct. filed Feb. 16, 1996).
[152]. James Rainey, City Takes First Step Toward Gun Ban, L.A. Times, Oct. 18, 1995, at B1.
[153]. Bureau of Alcohol, Tobacco, and Firearms, Operation Snapshot 3 (1992).
[154]. Of course, problems can arise with commercial firearm dealers as well. For example, following a recent sniper attack at the Army base at Fort Bragg, N.C., BATF officials focused their attention upon a Maryland firearm shop, Freestate Arms and Munitions. This dealer was the "last recorded point of sale for more than 100 weapons recovered in crimes" in the preceding 18 months. Shop Suspected of Giving Weapons to Criminals, S.F. Chron., Oct. 30, 1995, at A3.
[155]. See, e.g., Lafayette, Cal., Mun. Code s 8-609 (1994).
[156]. See, e.g., Lafayette, Cal., Mun. Code s 8-610 (1994).
[157]. See supra part II.C.2.
[158]. The tracing technology involves the inclusion of tiny plastic chips, called "taggants," in explosives or their components. The multi-layered chips contain microscopic, color-coded bands that identify the type of explosive, the manufacturer, and the date of production of the explosive material. By recovering the taggants from a crime scene, authorities can trace the explosive material. Interest in taggants surged following the Oklahoma City bombing, but the NRA and other interest groups have fervently opposed any effort to include taggants in ammunition. John Schwartz, Technology Used to Tag Explosives Gets Second Look After Bombing, Wash. Post, May 7, 1995, at A8; see also John J. Fialka, Lobbyists for Explosives Makers Battle Proposal to Require "Taggants" for Tracing Bomb Sources, Wall St. J., May 4, 1995, at A16.
[159]. See 77 Cal. Op. Att'y Gen. 147 (1994).
[160]. See supra text accompanying notes 121-42.
[161]. Cal. Bus. & Prof. Code s 16000 (West 1987) (incorporated cities); Cal. Bus. & Prof. Code s 16100 (West 1987) (counties).
[162]. San Francisco, Cal, Mun. Code s 1004.18 (1995). In December 1995, the city was sued over this provision. See San Francisco Gun Exch. v. City and County of S.F., No. C95-7036 (S.F. Super. Ct. filed Dec. 28, 1995).