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Thread: State pre-emption for open carry?

  1. #1
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    State pre-emption for open carry?

    Is there a pre-emption where localities cannot restrict open carry?

    Is it different:
    - If you have a license.
    - If you don't have a license.

    Thanks.

  2. #2
    Regular Member bigdaddy1's Avatar
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    No local law can be harsher than the states, so yes on preemption. Licensed carry open or concealed provides you immunity from GFSZ restrictions, unlicensed open carry is still legal but you have no GFSZ protection.
    What part of "shall not be infringed" don't you understand?

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    Thanks. I thought that was right but couldn't put it all together.

    Anyone have a Statute reference for pre-emption so I can document that in my summary?

    thanks,

    ksks

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    Founder's Club Member bnhcomputing's Avatar
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    Preemption statute is for FIREARMS ONLY

    66.0409 Local regulation of firearms.
    (1) In this section:
    (a) “Firearm” has the meaning given in s. 167.31 (1) (c).
    (b) “Political subdivision” means a city, village, town or county.
    (c) “Sport shooting range” means an area designed and operated for the practice of weapons used in hunting, skeet shooting and similar sport shooting.
    (2) Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.
    (3)
    (a) Nothing in this section prohibits a county from imposing a sales tax or use tax under subch. V of ch. 77 on any firearm or part of a firearm, including ammunition and reloader components, sold in the county.
    (b) Nothing in this section prohibits a city, village or town that is authorized to exercise village powers under s. 60.22 (3) from enacting an ordinance or adopting a resolution that restricts the discharge of a firearm. Any ordinance or resolution that restricts the discharge of a firearm does not apply and may not be enforced if the actor’s conduct is justified or, had it been subject to a criminal penalty, would have been subject to a defense described in s.939.45.


    (4)
    (a) Nothing in this section prohibits a political subdivision from continuing to enforce an ordinance or resolution that is in effect on November 18, 1995, and that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, if the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.
    (am) Nothing in this section prohibits a political subdivision from continuing to enforce until November 30, 1998, an ordinance or resolution that is in effect on November 18, 1995, and that requires a waiting period of not more than 7 days for the purchase of a handgun.
    (b) If a political subdivision has in effect on November 17, 1995, an ordinance or resolution that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, and the ordinance or resolution is not the same as or similar to a state statute, the ordinance or resolution shall have no legal effect and the political subdivision may not enforce the ordinance or resolution on or after November 18, 1995.
    (c) Nothing in this section prohibits a political subdivision from enacting and enforcing a zoning ordinance that regulates the new construction of a sport shooting range or when the expansion of an existing sport shooting range would impact public health and safety.


    (5) A county ordinance that is enacted or a county resolution that is adopted by a county under sub. (2) or a county ordinance or resolution that remains in effect under sub. (4) (a) or (am) applies only in those towns in the county that have not enacted an ordinance or adopted a resolution under sub. (2) or that continue to enforce an ordinance or resolution under sub. (4) (a) or (am), except that this subsection does not apply to a sales or use tax that is imposed under subch. V of ch. 77.


    (6) Unless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply, no person may be in violation of, or be charged with a violation of, an ordinance of a political subdivision relating to disorderly conduct or other inappropriate behavior for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried. Any ordinance in violation of this subsection does not apply and may not be enforced.

    And here is the link: http://docs.legis.wisconsin.gov/stat...tatutes/66.pdf

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    Great! Thanks guys.

    I've developed an outline of the laws and trying to finish the details.

  6. #6
    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by ksks View Post
    Is there a pre-emption where localities cannot restrict open carry?

    Is it different:
    - If you have a license.
    - If you don't have a license.

    Thanks.
    While they may not enact general Open Carry bans within the municipality, they may require you to carry concealed in municipal buildings and on certain municipal property. This means that you may only carry if you possess a license and then your manner of carry is restricted to be concealed. This is possible because allowing concealed carry is a less stringent prohibition than prohibiting carry altogether.
    While this is a controversial subject, it is believed by many lawyers that municipalities may prohibit the carry of a firearm in a park unless you are a licensee. It is believed that a municipal park ban is no more stringent than a State Park ban.
    Although they may not restrict a licensee to concealed carry, they may ban carry by non-licensees whose only manner of legal carry happens to be open carry.
    Municipalities may not regulate open carry on private property regardless if it is by a licensee or not.

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    Thanks IK. Helpful info.

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    Regular Member hermannr's Avatar
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    Boy, have you guys got a long way to go with that "pre-emption" statute.

    Example: .290

    The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

  9. #9
    Herr Heckler Koch
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    Quote Originally Posted by hermannr View Post
    Boy, have you guys got a long way to go with that "pre-emption" statute.

    Example: .290 [ ... ]Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.
    Hypothetically, a municipality enacts an ordinance inconsistent with Washington State firearms preemption and enforces the ordinance against a citizen. Then what?

    Washington's preemption statute, as presented here, seems to have no more teeth than Wisconsin's, there is no agency charged with enforcing the legislatures will against the sovereign state executive.

  10. #10
    Regular Member Ironside's Avatar
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    You can get some ideas from the newly enacted changes to Florida's pre-emptive statute that provides enforcement for those who willing trample on your state's pre-emption law.

    790.33 Field of regulation of firearms and ammunition preempted.—
    (1) PREEMPTION.—Except as expressly provided by the State
    Constitution or general law, the Legislature hereby declares that it is
    occupying the whole field of regulation of firearms and ammunition,
    including the purchase, sale, transfer, taxation, manufacture, ownership,
    possession, storage, and transportation thereof, to the exclusion of all existing
    and future county, city, town, or municipal ordinances or any administrative
    regulations or rules adopted by local or state government relating thereto.
    Any such existing ordinances, rules, or regulations are hereby declared null
    and void.
    (2) POLICY AND INTENT.—
    (a) It is the intent of this section to provide uniform firearms laws in the
    state; to declare all ordinances and regulations null and void which have been
    enacted by any jurisdictions other than state and federal, which regulate
    firearms, ammunition, or components thereof; to prohibit the enactment of
    any future ordinances or regulations relating to firearms, ammunition, or
    components thereof unless specifically authorized by this section or general
    law; and to require local jurisdictions to enforce state firearms laws.
    (b) It is further the intent of this section to deter and prevent the violation
    of this section and the violation of rights protected under the constitution and
    laws of this state related to firearms, ammunition, or components thereof, by
    the abuse of official authority that occurs when enactments are passed in
    violation of state law or under color of local or state authority.
    (3) PROHIBITIONS; PENALTIES.—
    The Florida Statutes - The Florida Senate Page 80 of 97
    http://www.flsenate.gov/Laws/Statute...Chapter790/All 9/16/2011

    (a) Any person, county, agency, municipality, district, or other entity that
    violates the Legislature’s occupation of the whole field of regulation of
    firearms and ammunition, as declared in subsection (1), by enacting or
    causing to be enforced any local ordinance or administrative rule or
    regulation impinging upon such exclusive occupation of the field shall be
    liable as set forth herein.
    (b) If any county, city, town, or other local government violates this
    section, the court shall declare the improper ordinance, regulation, or rule
    invalid and issue a permanent injunction against the local government
    prohibiting it from enforcing such ordinance, regulation, or rule. It is no
    defense that in enacting the ordinance, regulation, or rule the local
    government was acting in good faith or upon advice of counsel.
    (c) If the court determines that a violation was knowing and willful, the
    court shall assess a civil fine of up to $5,000 against the elected or appointed
    local government official or officials or administrative agency head under
    whose jurisdiction the violation occurred.
    (d) Except as required by applicable law, public funds may not be used to
    defend or reimburse the unlawful conduct of any person found to have
    knowingly and willfully violated this section.
    (e) A knowing and willful violation of any provision of this section by a
    person acting in an official capacity for any entity enacting or causing to be
    enforced a local ordinance or administrative rule or regulation prohibited
    under paragraph (a) or otherwise under color of law shall be cause for
    termination of employment or contract or removal from office by the
    Governor.
    (f) A person or an organization whose membership is adversely affected
    by any ordinance, regulation, measure, directive, rule, enactment, order, or
    policy promulgated or caused to be enforced in violation of this section may
    file suit against any county, agency, municipality, district, or other entity in
    any court of this state having jurisdiction over any defendant to the suit for
    declaratory and injunctive relief and for actual damages, as limited herein,
    The Florida Statutes - The Florida Senate Page 81 of 97
    http://www.flsenate.gov/Laws/Statute...Chapter790/All 9/16/2011
    caused by the violation. A court shall award the prevailing plaintiff in any
    such suit:
    1. Reasonable attorney’s fees and costs in accordance with the laws of this
    state, including a contingency fee multiplier, as authorized by law; and
    2. The actual damages incurred, but not more than $100,000.
    Interest on the sums awarded pursuant to this subsection shall accrue at the
    legal rate from the date on which suit was filed.


    (4) EXCEPTIONS.—This section does not prohibit:
    (a) Zoning ordinances that encompass firearms businesses along with
    other businesses, except that zoning ordinances that are designed for the
    purpose of restricting or prohibiting the sale, purchase, transfer, or
    manufacture of firearms or ammunition as a method of regulating firearms or
    ammunition are in conflict with this subsection and are prohibited;
    (b) A duly organized law enforcement agency from enacting and
    enforcing regulations pertaining to firearms, ammunition, or firearm
    accessories issued to or used by peace officers in the course of their official
    duties;
    (c) Except as provided in s. 790.251, any entity subject to the prohibitions
    of this section from regulating or prohibiting the carrying of firearms and
    ammunition by an employee of the entity during and in the course of the
    employee’s official duties;
    (d) A court or administrative law judge from hearing and resolving any
    case or controversy or issuing any opinion or order on a matter within the
    jurisdiction of that court or judge; or
    (e) The Florida Fish and Wildlife Conservation Commission from
    regulating the use of firearms or ammunition as a method of taking wildlife
    and regulating the shooting ranges managed by the commission.
    (5) SHORT TITLE.—As created by chapter 87-23, Laws of Florida, this
    section may be cited as the “Joe Carlucci Uniform Firearms Act.”
    History.—ss. 1, 2, 3, 4, ch. 87-23; s. 5, ch. 88-183; s. 1, ch. 2011-109.

    Hope this helps ...
    When those in Government fail to see the danger in too much Government, they become the danger.
    (Original quote by me)

    If we lose the Second Amendment it is only a matter of time before we lose the First Amendment, then the Fourth Amendment and then it is all downhill from there ...

    I've OCed and didn't scare the horses or stampede the women!

    It's too late to train when you are in the middle of a gunfight ... (me)

    IDPA SSP/MM

  11. #11
    Herr Heckler Koch
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    Quote Originally Posted by Ironside View Post
    You can get some ideas from the newly enacted changes to Florida's pre-emptive statute that provides enforcement for those who willing trample on your state's pre-emption law. [ ... ] Hope this helps ...
    We can only hope and change. Does Florida, or Washington, grant constitutional home rule as Wisconsin does?

    Quote Originally Posted by Wisconsin Constitution
    ARTICLE XI Municipal home rule; debt limit; tax to pay debt. SECTION 3.
    [As amended Nov. 1874, Nov. 1912, Nov. 1924, Nov.1932, April 1951, April 1955, Nov. 1960, April 1961, April 1963, April 1966 and April 1981]
    (1) Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.
    See the bureaucratic morass involved in undoing 135 years of local jurisdiction?

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    Please quote the part of the statute that specifically states that local government can regulate electronic weapons beyond state laws.
    Because I am not seeing anything that omits, or specifically mentions electronic weapons.

    I think we went through this with the advent of everyone learning that O-C is, and always was legal in WI, People were looking for a law that stated it was legal, when instead that does not exist, so if there is no law specifically prohibiting a practice, it is therefor entirely legal.
    And to reinforce my point, I offer you the CC license, and the fact that under current state law one os needed to even possess an electronic weapon. So if a local govt did enact an ordinance against their possession, it would be a bogus law, and easily winnable under the states preemption clause .
    Last edited by Nutczak; 02-19-2012 at 12:24 PM.

  13. #13
    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Nutczak View Post
    Please quote the part of the statute that specifically states that local government can regulate electronic weapons beyond state laws.
    Because I am not seeing anything that omits, or specifically mentions electronic weapons.

    I think we went through this with the advent of everyone learning that O-C is, and always was legal in WI, People were looking for a law that stated it was legal, when instead that does not exist, so if there is no law specifically prohibiting a practice, it is therefor entirely legal.
    And to reinforce my point, I offer you the CC license, and the fact that under current state law one os needed to even possess an electronic weapon. So if a local govt did enact an ordinance against their possession, it would be a bogus law, and easily winnable under the states preemption clause .
    Only firearms are called out in the WI State Preemption Statute. It is legal for them to regulate electronic weapons for the same reason that it is legal for you to Open Carry without a License. There is no Statute which prohibits municipalities from regulating electronic weapons therefore they may do so.

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    I Take Your Point

    Quote Originally Posted by Interceptor_Knight View Post
    Only firearms are called out in the WI State Preemption Statute. It is legal for them to regulate electronic weapons for the same reason that it is legal for you to Open Carry without a License. There is no Statute which prohibits municipalities from regulating electronic weapons therefore they may do so.
    but would add that a municipality is still a governmental unit. Governmental units can act only where they are authorized by law. Individuals, by contrast, may act except when restricted by law. Preemption is a restriction on the grant of power a municipality has been given. Schematically:

    Question: May (local government unit) do X?
    Step 1: Is there a grant of authority in the constitution or state statute covering the topic?
    Decision 1: If Yes, go to next step. If No, LGU may not do X.
    Step 2: Is there a state statute limiting the grant of authority (preemption) regarding X?
    Decision 2: If Yes, LGU may not do X. If No, LGU may do X.

    Question: May (citizen) do Y?
    Step 1: Is there a constitutional or statutory or local law prohibiting Y?
    Decision1: If Yes, Citizen may not do Y.
    If No, Citizen may do Y.
    Step 2: Is Citizen by law or other authority exempted from the general law of prohibition?
    Decision 2: If Yes, Citizen may do Y. If No, Citizen may not do Y.

    Examples:

    Question: May the City of Green Bay prohibit ownership of pistols?
    Step 1: Cities have common law powers including the police power.
    Answer 1: Town may have this power, go to Step 2.
    Step 2: The state in Wis. Stat. 66.0409 preempts this field.
    Decision 2: City of Green Bay may not prohibit ownership of pistols.

    Question: May the Village of Mazomanie prohibit the operation of a business in residential zone?
    Step 1: Villages are granted zoning power under Wis. Stat. 61.35.
    Answer 1: Mazomanie may have this power.
    Step 2: There is no applicable restriction on Mazomanie's zoning power.
    Decision 2: The Village of Mazonmanie may prohibit the operation of a business in a residential zone.

    Question: May John Q. Public drive a vehicle with studded tires on his private vehicle?
    Step 1: Citizens do not need a specific grant of authority to perform an act.
    Answer 1: It appears that John Q Public may drive such a vehicle.
    Step 2: There is a state statue prohibiting the use of studded tires. John does not meet any of the exceptions.
    Decision 2: John may not drive a vehicle with studded tires.

    Question: May John Q. Public drive a vehicle in icy conditions with tire chains on his private vehicle?
    Step 1: Citizens do not need a specific grant of authority to perform an act.
    Answer 1: It appears that John Q Public may drive such a vehicle.
    Step 2: There is a state statue prohibiting the use of studded tires (& similar equipment). There is an exception for tire chains.
    Decision 2: John may drive a vehicle with tire chains.
    Last edited by apjonas; 02-22-2012 at 11:56 AM. Reason: typo

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    Maybe, Maybe Not

    Quote Originally Posted by Interceptor_Knight View Post
    Only firearms are called out in the WI State Preemption Statute. It is legal for them to regulate electronic weapons for the same reason that it is legal for you to Open Carry without a License. There is no Statute which prohibits municipalities from regulating electronic weapons therefore they may do so.
    I would probably agree with you as to non-licensees. However, the issuance of a license by the state could be considered to be (1) "constructive preemption" or (2) void the local ordinance under a supremacy of law argument. There is no need for a preemption statute if the subject matter is otherwise reserved to the state. Preemption is important where (1) the subject matter is normally a local matter (e.g. zoning) or (2) power to regulate the subject matter is shared by the local government and state (e.g. traffic laws).

    Remember that electric weapons were prohibited by state statute before Act 35. Therefore there would be no need for preemption. Local governments could not have permitted electric weapons even if they had wanted to. To take Act 35 and carve out large sections simply because there is not a specific preemption is inconsistent with principles of statutory construction. Theoretically any village in the state could turn a concealed weapons law into a concealed handgun law. If the legislature wanted a Michigan style law, they could have done one. The legislature could expand preemption to explicitly include any Act 35 covered weapon but I don't think it's necessary.
    Last edited by apjonas; 02-22-2012 at 12:11 PM. Reason: add

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