The Pros and Cons of city pre-emption

[SHR970]

ClydeFrog wrote:I can see the need to have protection with a firearm but I can also see the need of local LE/homeland security to maintain law & order(public safety).

I can understand why you take the position with regard to Local LE but "Homeland" absolutely not. Homeland is .fed and completely out of scope. Local presents its own unique set of problems in some areas. and I will provide a reason why I disagree with your position here.

I live in Los Angeles County. If you look on a map of the City of Los Angeles you will note that it has a very interesting shape going from Downtown to Los Angeles International Airport, Downtown to Port of Los Angeles (San Pedro), and Downtown to the "Valley". There are many "cities" that are actually part of the City of Los Angeles. Should the City of Los Angeles be allowed their own unique laws one could run afoul by simply crossing a one or two block wide path in one of many locations. In many cases, they actually need to look up the address to know who to send for a 911 call.

By population the City of Los Angeles ranks above Oklahoma which is the 28th most populous state. And that is in a county that ranks above Michigan the 9th most populous state. So how many people can we make instant criminals by one city having its own unique enforceable laws that are WAY better served being codified on a state level? Bad enough that emergency services need their version of Google maps to know for sure who's jurisdiction you are in, but people who are not resident in the immediate area won't know where the crazy borders are; let alone folks from out of the immediate area and then out of towners.

Now look at how many other places present these kinds of challenges. Got a Utah CCW valid in 28? states? It would seem like a slam dunk to be able to get anyone convicted of a violation that would prohibit you from getting another permit let alone own a gun ever again.


City Pre-emption with the force of state law???? I only see the force of state law making this feasible and enforceable at any real level. HELL NO! IANAL but this is extremely bad juju.

[DAVID NANCARROW]

Its a scary thought when ANY government entity, be it Federal, State, County or Local believes they can restrict or outlaw the civil liberties of American citizens. Prove to me that if I check my firearms at the border or city limits and I will be safer, and I might take a second look.

From what I have experienced personally, the taking of effective defensive tools from law abiding citizens does NOTHING to decrease crime. What it does provide is a defenseless population to be preyed upon at the whim of the criminal. The faulty rationale presupposes the guilt of the population in order to take their effective defenses away. So much for the innocents.

I could care less what the majority thinks-the majority isn't always right, or even bright about some things. The Bill of Rights is not about the majority, but the rights of the individual American. Without the guarantees of the 2nd Amendment, America is in danger of any political group with bad intentions towards our hard won liberty, not to mention being the target of criminal intent.

[btmj]

Let's assume that the carrying of a firearm outside the home is a constitutionally protected civil right. I believe it is, and I believe the courts are on the way to finally recognizing it. But for the sake of argument, let's assume that the RKBA in the 2nd ammendment means that carrying a firearm in some way, either open or concealed, is a civil right.

City governments have long tried to infringe on civil rights in the name of public safety, and often with a great deal of public support. Local restrictions on speech and self expression were very common (such as anti-pornography laws, zoning laws against certain kinds of worship, restrictions on public demonstrations, etc). These laws were very popular, but the courts have quashed most of them.

Other examples: 100 years ago local governments use to harrass union organizers by violating freedom of speech / freedom of association. Local governments frequently abused vagrancy laws to harrass and jail undesirables, and the laws were intentionally written to be vague: this allowed police to use considerable discretion on who was charged with vagrancy. Courts put an end to that nonsense about 50 years ago, based on violations of 1st and 4th ammendment (and maybe others). Once again, most of these laws were popular and had broad support of voters.

So now we have cities which want to restrict a civil right (carrying a firearm) based on the fact that most of the city residents support the restriction. How is that different than a city restricting freedom of assembly / freedom of speech of some unpopular group? I am sure that various Jim Crow laws were very popular in the south 100 years ago, but the popularity of the laws is irrelevant to the legality of such laws. Same thing with a restriction on the RKBA.

I am not a lawyer, but that is how I see it.

Jim

[Madcap_Magician]

There are pros to local government preemption?

[wayneinFL]

I just drove a 60 mile stretch of highway that went through no less than 12 jurisdictions. Going to to Dothan tonight and will pass through dozens of Florida counties.

I don't see how someone could reasonably be expected to research each and every local ordinance on a intrastate trip. Of every other jurisdiction could ban concealed carry, it would be a de facto ban.

And I pay taxes in all these areas, because they're all partially funded by the state. I pay taxes to the state. And I pay hotel taxes, sales taxes, and gas taxes in these other jurisdictions. Not to mention property taxes in 3 Florida counties. Not to mention the money I spend with businesses in this areas that are taxed by the state.

So, no... I think I have the right to complain that my civil rights are being infringed in those areas, and to have the state pre-empt those smaller entities.

[tyme]

Originally Posted by ClydeFrog

If 1,000,000 citizens get CCWs do you think that 0 CCW holders would be involved in a lethal force incident a calendar year later?

If a thousand cops get permission to carry guns do you think that none of them will be involved in a wrongful lethal force incident?

If not, the only logical conclusion is to disarm police.

I don't consider carrying a firearm to be a basic human right per se. Self defense is a basic human right. Firearms happen to be the most effective means of defense in a wide variety of situations. (Situational awareness and some basic psychology is perhaps even more important to decrease the chance that you'll have use a gun to begin with, but sometimes that isn't good enough.)

Letting cities, towns and counties decide for themselves whether to enact separate weapons policies (or really, separate policies on much of anything other than obviously local issues such as zoning or business regulation) is braindead. This isn't the 1800s or 1700s. People travel between jurisdictions, and to jurisdictions they're unfamiliar with, a lot more than they used to, and rarely have the inclination or time to get a rundown on the laws of every jurisdiction they pass through. And if they did, you'd have them disarmed for the entire trip just because one jurisdiction decides, in its infinite wisdom, to ban a weapon? (Knife laws are arguably even more schizophrenic.)

Such is the burden of multi-level government (which has its benefits, but not in cases like these).

[armoredman]

I'd have to say preemption works quite well for those of us who enjoy it. Also, we're working on getting a bill through that will hold politicians who attempt to violate it PERSONALLY and FINANCIALLY responsible for that violation...and the political subdivision is specifically forbidden from "making it up" the the affected idiot. I see this one getting signed.
http://www.azleg.gov//FormatDocument...Session_ID=112

Heck, we here in the Grand Canyon State even have a knife preemption law! As much as the "big cities" might want to think, NOT allowing them to set their own laws makes for a safer state, and doesn't waste tax payer dollars prosecuting otherwise law abiding citizens for infractions of laws designed to only punish the law abiding.

[Fishing_Cabin]

Originally Posted by tyme

Such is the burden of multi-level government (which has its benefits, but not in cases like these).

I guess it depends on perspective. Though this thread is about "city pre-emption" what if it was that no states could be stricter, or less strict than federal law, or international law? If one were to want to ramp it up, where does it stop? Yes there is, and will always be a multi-level government. Question is, is which level has what powers? This thread will not answer that.

Originally Posted by wayneinFL

I just drove a 60 mile stretch of highway that went through no less than 12 jurisdictions. Going to to Dothan to the most tonight and will pass through dozens of Florida counties.

I don't see how someone could reasonably be expected to research each and every local ordinance on a intrastate trip. Of every other jurisdiction could ban concealed carry, it would be a de facto ban.

I can understand that, but if we do not want to worry with all those pesky "local" laws, why not make an international law? Or make it the most restrictive state has dominance, etc... If so, why should I have to meet NY or Ca laws since I live in NC? Just because I may drive from NC to Ca or NY? I have to worry about the laws in OK or PA when I pass through don't I? Why shouldn't I have to worry about meeting the most strict or least strict? Heck, why should I have to meet the state restrictions which are tied to the more liberal population centers (more people there in RDU area then rural areas) instead of the more rural and easy going area I live in?

[btmj]

fishing cabin - you argue by taking the situation to an extreme... at which point it becomes ridiculous. point taken...

But..... we are talking about a very real and specific situation. Cities and counties are political subdivisions of states. The state can override any city and county law. The state can dissolve cities and counties, or rearrange their borders. The cities and counties have no sovereignty with respect to the state, except that the state allows it by statute.

States are not (in this sense) political subdivisions of the United States. States have a sovereignty separate from the US. The constitution lays out which powers the US has versus those powers the states have.

If the states are prohibited from violating a civil right (such as freedom of assembly, or the RKBA), then there is no way that a city or county within a state may do so.

We don't allow cities to exercise a prior restraint on speech just because the citizens don't want to hear from the KKK or the Gays or Evangelicals or the whatever. I.e. cities can't preempt the 1st amendment. Nor can they preempt the 2nd.

[Fishing_Cabin]

Originally Posted by btmj

I.e. cities can't preempt the 1st amendment. Nor can they preempt the 2nd

If certain cities can not pre-empt the 2nd, then why are they allowed? Case in point, Philly, NYC etc? Why should they have restrictions that other cities in the same state do not have?

fishing cabin - you argue by taking the situation to an extreme... at which point it becomes ridiculous. point taken...

The extreme goes both ways though.

[2ndsojourn]

Fishing Cabin, the firearm law I think you're referring to in Philly is not a city law but a state law. (Open carry is permitted except in a city of the first class). Philly just happens to be the only first class city (yeah, right) in the state. New york, I'm not sure about, but state issued CCL's specifically exclude NYC. Again, state law, not city law.

[Brian Pfleuger]

If certain cities can not pre-empt the 2nd, then why are they allowed? Case in point, Philly, NYC etc? Why should they have restrictions that other cities in the same state do not have?

They can preempt the 2nd because it has not (yet) been held by the courts to be the same "level" of civil right as free speech, religion, etc. Firearms owners/carriers are also not a "Protected Class", which means there's no such (legal) thing as discriminating against them.

You'll notice that there are no local preemptions on free speech, or religion or press or quartering of soldiers....

[JimDandy]

They can preempt the 2nd because it has not (yet) been held by the courts to be the same "level" of civil right as free speech, religion

That and the basic premise is flawed. Cities CAN regulate the 1A. Between "free speech zones" assembly/parade permits, and so on.

The answer to the spirit of the question asked is: Preemption (As far as I understand it) is when the State tells all of it's subdivisions (cities, towns, etc) that it reserves all the laws regarding an area to themselves.

I suppose it's theoretically possible for the State to tell their subdivisions they're preempting 1A issues and take over all the parades, protests, and other stuff that goes with it. When they do it with firearms they tell 'em laws on carry and ownership, etc. lies with them, and commonly only leave regulating some of the discharge of firearms to the local level.

[Tom Servo]

They can preempt the 2nd because it has not (yet) been held by the courts to be the same "level" of civil right as free speech, religion, etc.

I don't know. Alito clearly and intentionally referred to the RKBA as a "fundamental" right several times in McDonald. Shouldn't that elevate it to the same standards as other enumerated rights?

[JimDandy]

Shouldn't that elevate it to the same standards as other enumerated rights?

Shouldn't it have started out with the same standards as our other enumerated rights? Should and Are probably differ here, and likely will until more and more cases are decided making it so directly. Establish it as a full fledged civil right on par with jury duty, voting, and so on.

[Fishing_Cabin]

Originally Posted by JimDandy

I suppose it's theoretically possible for the State to tell their subdivisions they're preempting 1A issues and take over all the parades, protests, and other stuff that goes with it. When they do it with firearms they tell 'em laws on carry and ownership, etc. lies with them, and commonly only leave regulating some of the discharge of firearms to the local level.

The connection to parades, protest and religion (street preaching permit, or temp building/fire permit for tent meetings) is a good point. It would be odd that the localities have no say, but, I doubt it would be a "full" pre-empting as some seem to like. There will probably be some wiggle room for discharge penalties at the local level, or firearm hunting restrictions imposed by some municipalities.

What concerns me about this is what trade offs are people willing to give up in order for there to be state pre-emption?


eta:

Originally Posted by JimDandy

Establish it as a full fledged civil right on par with jury duty, voting, and so on.

There again though, there are some restrictions one way or another on those. My employer is in no way required to allow me to vote on paid time, nor are they required to let me carry a firearm on their property if they choose not to. Nor are they required to pay me to support my own candidate by trying to win support from other employees or customers. I doubt that state pre-emption will change that.

I believe that the idea of state pre-emption is to eliminate restrictions, but I don't see how that is going to work out in real life. There are and will be restrictions of some level, at both local, state, and federal level.