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Thread: State Preemption of municipal codes?

  1. #1
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    I was planning a group meeting to Open Carry in Orange, CA. However, I read through the City of Orange's Municipal code and came across this section

    9.32.010 Carrying Concealed Weapons--Prohibited Without Permit.
    No person except a Police Officer shall carry upon his person any revolver, pistol or other instrument or weapon, commonly known as a concealed weapon, without a written permit from the Chief of Police. (Ord. 4-00: Prior Code 4250)



    12.48.050 Prohibition on the Use of Firearms, Firecrackers and Dangerous Instruments.
    No person shall:
    A.Except an authorized law enforcement officer, bring, use, carry, or possess upon park property, other than at such firing ranges as may be specifically designated by the Director, any firearms of any description, or air rifles, bow-and-arrows, spring guns, slings, or any other forms of weapons potentially inimical to wildlife and dangerous to human safety.



    Does anyone know and can show with case law or other evidence the rule about open carrying in this city in relation to the State Preemption law?


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    inetprez wrote:
    Does anyone know and can show with case law or other evidence the rule about open carrying in this city in relation to the State Preemption law?
    The closest case is the recent San Francisco preemption case - appeals court seems to say that under Ca. state const. localities are preempted geenrally from enacting ordiances in conflict with state statutes and policies enacted to uniformly regulate a field of conduct - clearly 12031 is such a statute and even mentions the rights of rural localities to enact shooting bans which then create no loaded OC zones - I have not heard of any enforcement of any local open carry ban in california - you might wan tto check to see what tehpenalty is and if you have further concerns contact a Ca. lawyer and pay him for real legal advice.

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    We've discussed this in great detail in the past. Just do a forum search for "Preemption" and you should find at least a couple threads that will answer your questions.
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  4. #4
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    CA_Libertarian

    Do we have or has anyone put these Preemption Laws into a brochure or form that we can keep with us in case we have contact with a LEO?

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    Regular Member demnogis's Avatar
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    9.32.010 only applies to concealed weapons.

    The other statute, 12.48.050 clearly violates a person's RKBA as it designates all parks in orange as "prohibited areas" for possession. This means you can only carry or keep a firearm there with a concealed weapons permit.
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    demnogis wrote:
    9.32.010 only applies to concealed weapons.

    The other statute, 12.48.050 clearly violates a person's RKBA as it designates all parks in orange as "prohibited areas" for possession. This means you can only carry or keep a firearm there with a concealed weapons permit.
    A handgun is a "concealable" weapon per 12025...thus, 9.32.010 means that you cannot carry a handgun in the city of Orange.

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    inetprez wrote:
    CA_Libertarian

    Do we have or has anyone put these Preemption Laws into a brochure or form that we can keep with us in case we have contact with a LEO?
    I don't think so. You could always make a new pamphlet, or post in one of those threads asking the author to update theirs.
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  8. #8
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    inetprez wrote:
    demnogis wrote:
    9.32.010 only applies to concealed weapons.

    The other statute, 12.48.050 clearly violates a person's RKBA as it designates all parks in orange as "prohibited areas" for possession. This means you can only carry or keep a firearm there with a concealed weapons permit.
    A handgun is a "concealable" weapon per 12025...thus, 9.32.010 means that you cannot carry a handgun in the city of Orange.
    But the original poster's question was whether these local ordinances are preempted - I think they are, but have no case to cite to on point.

  9. #9
    Regular Member demnogis's Avatar
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    The wording in the law states concealed, not concealable, as wording does in other laws that prohibit carrying of concealed weapons, or possession of firearms "capable of being concealed".
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  10. #10
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    Mike wrote:
    inetprez wrote:
    demnogis wrote:
    9.32.010 only applies to concealed weapons.

    The other statute, 12.48.050 clearly violates a person's RKBA as it designates all parks in orange as "prohibited areas" for possession. This means you can only carry or keep a firearm there with a concealed weapons permit.
    A handgun is a "concealable" weapon per 12025...thus, 9.32.010 means that you cannot carry a handgun in the city of Orange.
    But the original poster's question was whether these local ordinances are preempted - I think they are, but have no case to cite to on point.
    If local ordinances are preempted, then why did the 9th circuit court not say this in Nordyke v. King? The Alameda County ordinance made it a misdemeanor to bring onto or to possess a firearm or ammunition on County property. Seems very similar to the Orange ordinance. In the Nordyke v. King decision, the court said,


    "But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are County property...

    The County argues that its Ordinance merely forbids the carrying of firearms in sensitive places, which includes the Alameda County fairgrounds and other County property...

    To summarize: the Ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise. Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for "sensitive places" that Heller recognized. These considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us."
    I would be very careful to consider this case before you decide to open carry in violation of a city/county park ordinance.There are "safer" places to open carry.


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  11. #11
    Regular Member demnogis's Avatar
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    http://www.ag.ca.gov/firearms/dwcl/53701.php

    State Preemption of Firearm Regulation
    • 53071. 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 or licensing of commercially manufactured firearms, by any political subdivision as defined in Section 1721 of the Labor Code.
    Also... From http://www.lcav.org/content/preempti..._authority.pdf

    Look at the footnotes on pg. 5 of 7.
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  12. #12
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    I believe the case law is consistant with the Nordyke case in that the courts have allowed possession bans on municipal property. I don't believe this extends to places like public parks, but I'm not sure. I can't remember why, but I have the impression that it only applies in places where they have the right to restrict access (e.g. fair grounds, or the fenced-in yard where they park all the city vehicles).

    City parks are also a special case if they have playgrounds, as this is regulated in the Penal Code and is easier to argue preemption. Even so, if the city has a code against carrying in parks, I wouldn't test it without talking to a lawyer first.
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  13. #13
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    Looks like UOC on NON-park property is OK under those laws. As the state has fully occupied the field of concealed firearms legislation I would say the concealed city law is preempted. I would not recommendtesting the park ordinance at this time.



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