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Thread: Preemption Conflict?

  1. #1
    Regular Member 2a4all's Avatar
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    Preemption Conflict?

    The Vice Mayor of Newport News attended the York BoS meeting last night (7/20/2010) out of concern for the Newport News/Williamsburg International Airport being exposed to perhaps stray gunfire resulting from the repeal of York's "no discharge" ordinance. I reminded her that our "no discharge" ordinance in Newport News didn't seem to be working so well. She responded that a violation could always be tacked on to other charges.

    I looked up our city code (http://library.municode.com/index.aspx?clientId=14013&stateId=46&stateName=Vir ginia)and found this: State law reference—Authority of city to regulate or prohibit the discharge of firearms, Code of Virginia, § 15.2-1113; discharging firearms in city street or other public places, Code of Virginia, §§ 18.2-280, 18.2-286.
    15.2-1113. Dangerous, etc., business or employment; transportation of offensive substances; explosive or inflammable substances; fireworks.
    A municipal corporation may regulate or prohibit the conduct of any dangerous, offensive or unhealthful business, trade or employment; the transportation of any offensive substance; the manufacture, storage, transportation, possession and use of any explosive or inflammable substance; and the use and exhibition of fireworks and the discharge of firearms. A municipal corporation may also require the maintenance of safety devices on storage equipment for such substances or items.
    Then, there's this:
    § 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.

    Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.

    The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.

    B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.
    The phrase "such substances or items" is pretty vague. Could we be talking city mandated trigger locks, storage permits, ammunition quantity, and other restrictions here?

  2. #2
    Accomplished Advocate peter nap's Avatar
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    Ask for clarification.

  3. #3
    Regular Member TFred's Avatar
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    IANAL, but my initial opinion is no.

    The preemption statute specifically says that any authority granted to localities by state code must specifically reference the fact that it is referring to firearms:

    ...other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
    The section on dangerous items and substances has a whole long list of things and how they may be restricted, but only one small section directly referring to firearms, and that is only related to "the discharge of firearms". The discharge of a firearm is neither a substance nor an item.

    The section of code relating to safe storage does not specifically reference firearms, and thus preemption clearly states that the locality cannot use that statute to regulate firearms.

    Just my view.

    TFred

    § 15.2-1113. Dangerous, etc., business or employment; transportation of offensive substances; explosive or inflammable substances; fireworks.

    A municipal corporation may regulate or prohibit the conduct of any dangerous, offensive or unhealthful business, trade or employment; the transportation of any offensive substance; the manufacture, storage, transportation, possession and use of any explosive or inflammable substance; and the use and exhibition of fireworks and the discharge of firearms. A municipal corporation may also require the maintenance of safety devices on storage equipment for such substances or items.

    Any municipal corporation that regulates or prohibits the discharge of firearms shall provide an exemption for the killing of deer pursuant to § 29.1-529. Such exemption shall apply on land of at least five acres that is zoned for agricultural use.

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