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Colorado Overturns Preemption Law; Other States May Follow

Colorado is now one of eight states that allow local governments to pass gun ordinances that are tighter than state restrictions. Lawmakers in other states are looking to follow Colorado and repeal their own preemption laws.

(TNS) — Less than two weeks before a man used an AR-15 style firearm to kill 10 people in a Boulder, Colorado, grocery store, a state court in March blocked that city's ordinance banning assault weapons.

That's because a state law, known as a preemption law, prevented Colorado cities from enacting stricter gun regulations than the state.

While the city's assault weapons ban likely would not have stopped this latest mass shooting, Colorado Senate Majority Leader Steve Fenberg said the tragedy showed the legislature had a responsibility to allow communities to protect themselves in the absence of strong federal and state gun laws.

Fenberg, a Democrat who represents Boulder, co-sponsored legislation this summer that made Colorado the first state in the country to overturn its preemption law. Forty-two other states have laws stopping local governments from enforcing strict gun restrictions. The Colorado measure, signed into law in June, also allows universities to make decisions about firearms on their campuses.

"The fact that we don't have federal action shouldn't mean states and cities should sit on the sidelines and wait," Fenberg said. "We can only be so effective at the state and local level, but we need to use the tools we have available."

Only California, Connecticut, Hawaii, Massachusetts, Nebraska, New Jersey and New York — and now Colorado — allow local governments to pass gun ordinances that are tighter than state restrictions. Some Democratic lawmakers in the other 42 states, frustrated by inaction, are considering whether to follow Colorado and overturn their preemption laws.

Allison Anderman, senior counsel for the Giffords Law Center, a gun safety group founded by former U.S. Rep. Gabby Giffords of Arizona, already has talked with lawmakers in other states about repealing their preemption laws.

"It's a really big deal," Anderman said. She declined to name specific states because the discussions are still in the early stages.

But Colorado Republican state Sen. Jerry Sonnenberg, who voted against the preemption repeal, said the new law won't make anyone safer. Tougher local restrictions create a patchwork of gun laws that could make criminals out of law-abiding residents, he said.

"It is impossible for any person to know the laws in each county or city or even special taxing district regarding firearms," he wrote in an email to Stateline. "If I am legal to carry concealed in my home county and enter another county that has made carrying a gun illegal, I am now a criminal."

Now that the state has freed up municipalities, Boulder City Council Member Rachel Friend told Stateline she will be working with neighboring towns to build a regional approach to passing gun violence prevention ordinances.

In Missouri, Democratic state Rep. Richard Brown has not been able to get a committee hearing on his bill to overturn the state's preemption law. The state has some of the least stringent gun regulations in the country and this year enacted a law that rejects federal gun restrictions.

"This is something that is reasonable," Brown said of allowing local communities to pass their own ordinances. "This should not be a partisan issue."

Barring Missouri cities from enacting tougher gun restrictions may placate Republican primary voters, but it's leading to a "genocide in the streets of America," especially among young Black men, said Kansas City Mayor Quinton Lucas.

Last year, Kansas City had the highest number of homicides in its history, recording 182 killings, according to a Kansas City Star count. Last year was the deadliest year for gun violence in the United States in two decades, and most of the killings occurred in cities, he said. This year is on track to be even deadlier.

"All right, the Second Amendment exists, but by God let us have minor things," he said in an interview. "Let us keep guns out of the hands of domestic abusers and minors. Let us track stolen guns. State law at every turn has preempted our ability to take action."

Until the 1970s, only a handful of states had firearm preemption laws. That changed in 1981 after the Chicago suburb of Morton Grove enacted the nation's first municipal handgun ban. Gun rights organizations successfully pushed most state legislatures over the next two decades to ban local firearm ordinances that would have enacted stricter regulations than the state, including in Illinois.

In recent years, states such as Arizona and Florida have expanded their preemption laws to strip localities of state funding or lob hefty fines if municipalities pass new restrictive gun ordinances, as proponents argued for consistency of gun laws throughout the state.

"These new, punitive preemption laws are like a brushback pitch from red state legislatures to blue city governments," said Joseph Blocher, professor and co-director of the Center for Firearms Law at Duke Law School. "They send a warning to steer clear of gun regulation entirely, or else face some potentially severe consequences."

But supporters say preemption laws ensure everyone in a state is equal under the law, said Charles Heller, spokesperson for the Arizona Citizens Defense League, a gun rights group. Local ordinances that go beyond state law can unwittingly punish law-abiding gun owners, he argued.

"If one thing is legal in one city and that same thing is illegal in another city, how is a citizen supposed to comply, and what danger does he face?" he asked. "It's an anti-freedom trend."

For years, Democratic officials in Tucson, Arizona, have tried to enact stricter gun laws. Many of these proposals came after Giffords, who represented Tucson, survived an assassination attempt in 2011. But the Arizona Supreme Court struck down city ordinances that would have mandated background checks for gun purchases on city property and allowed police to destroy seized firearms. By challenging the state's preemption law, Tucson risked losing $115 million in state money.

Tucson Council Member Steve Kozachik has led the fight to enact stricter gun ordinances in the city, a struggle that leaves him frustrated.

"Every time we adopt something, the state legislature reacts," he said. "There's more concern for the right to bear arms than the right to be safe. You can't even have a conversation with them; it's just religion to them."

Arizona went even further this year, enacting a law that prevents localities from using any state money to help enforce a federal gun law. Remaining defiant, Tucson passed a unanimous resolution saying it would continue to enforce federal laws, setting up yet another potential legal battle with the Republican-led state legislature.

Cities in other states have faced similar pushback. In April, the Ohio Supreme Court let stand an appellate court's decision to keep Cincinnati from enforcing its ban on bump stocks—rifle attachments that allow a semi-automatic to fire at a faster rate. The lower court cited the state's 2006 preemption law.

The opposite has been happening in states without strict preemption laws, where cities have been able to swiftly react to mass shootings and other gun violence in their communities.

Without far-reaching state restrictions on local gun ordinances, cities in California have been able to create new gun safety policies — many of which were later adopted at the state level, said Anderman at the Giffords Law Center. California now has the most stringent gun laws in the country.

"It's very important for localities to regulate guns as they see fit, and to try novel approaches to see if they work," she said. "The incubation of ideas happens a lot at the local level."

San Diego in September became the first city in California to ban untraceable, assemble-at-home firearms. So-called ghost guns have become an increasing public health problem for the community, said City Council Member Marni von Wilpert, who authored the ordinance.

In April, a man used a ghost gun to fire into a crowd in the city's Gaslamp Quarter, killing one person and injuring four others. The number of ghost guns seized by the San Diego Police Department has skyrocketed in recent years — increasing from 53 in 2018 to 428 this year. These guns could be owned by people prohibited from owning firearms, such as those with felonies.

"If someone gets shot here, we don't call the Sacramento 911," von Wilpert said, referring to the state capital. "We are the ones dealing with gunshot wounds in our emergency rooms. We need to be able to have our tools to prevent gun violence if the state is unwilling to act."

In San Jose, the city council in June unanimously passed new proposals that will require gun owners to carry liability insurance and pay an annual fee. Proponents of the measures argue gun owners should help offset the substantial fiscal costs gun violence has on the community, including in emergency response and law enforcement. Gun violence costs San Jose taxpayers around $63 million annually, according to the nonprofit Pacific Institute on Research and Evaluation.

San Jose will be the first city in the country with these requirements, which were proposed shortly after a man killed nine people in a San Jose railyard in May.

P.B. Gomez, president and founder of the California-based Latino Rifle Association, a gun rights group that advocates for self-defense protections, opposes the ordinances, arguing that it's ridiculous to think mass shooters would be deterred by their insurance premiums going up. Instead of potentially harming lower-income gun owners, many of whom are people of color, he said, the city should do more to tackle economic disparities—the main drivers of gang violence.

"This is far beyond the scale of what a municipal government is allowed to do and it's fundamentally classist," said Gomez, a self-described "leftist, anti-authoritarian, anti-capitalist."

San Jose Mayor Sam Liccardo, a Democrat, is working to craft the specifics of the new policies with legal experts and city officials. He expects a lawsuit as soon as the ink is dry on the final ordinance language, though it is unclear when these proposals will go into effect. Still, Liccardo thinks cities play an important role in pushing the boundaries of gun safety solutions.

"I think there are many other cities who are watching this closely," he said. "I'm having conversations with other mayors who say, 'Let us know if you survive this lawsuit. We'll follow you soon.'"


(c)2021 Stateline.org Distributed by Tribune Content Agency, LLC.

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