“Preemption” describes the removal of a government’s power to regulate a specific subject matter. When an act of Congress removes a local or state government’s power to regulate a specific subject matter, the process is called “federal preemption.” State and local laws are often challenged on the theory that Congress has preempted the subject matter. However, in examining such challenges, the courts presume that the state or local law is not preempted. The courts have developed the following rule. For a court to find that Congress has “preempted” the power of a lower level of government to regulate a subject matter, the court must be “absolutely certain” that Congress intended to preempt that field of regulation. Gregory v. Ashcroft, 501 U.S. 452, 464 (1991). When the state or local law in question concerns public health and safety, the law is within the historic police power of the States, and thus the requirement of “absolute certainty” of congressional intent to preempt is “particularly warranted.” Rice v Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947).
To determine congressional intent, the courts look for one or more of the following:
An express statement by Congress that it is taking over that field of regulation;
A pervasive scheme of federal regulation of the field that leaves no room for state or local regulation; or
An actual conflict between the federal law and the challenged state or local law.
However, the courts find such a conflict only when compliance with both the federal regulation and the challenged law would be physically impossible.
With respect to regulation of firearms, the courts have held that Congress made no explicit statement of its intent to take over that field of regulation. They have also found that congressional regulation of firearms is not a scheme so pervasive that it leaves no room for state and local law. Thus, absent a specific, actual conflict between a challenged state or local firearms law and a federal enactment, there is no federal preemption of that state or local law. See Richmond Boro Gun Club, Inc. v. City of New York, 896 F.Supp. 276, 285-288 (E.D.N.Y. 1995) (discussing the fact that Congress has nowhere made a statement of intent to preempt local regulation of firearms and the federal laws regulating firearms do not establish a pervasive scheme of regulation, and holding that New York City’s ordinance banning “assault weapons” was not in actual conflict with the provisions of the Federal Civilian Marksmanship Program).
A state may also regulate in a manner that preempts the power of the local governments within that state to regulate the same subject. This process is called “state preemption.” Some states have enacted laws explicitly preempting the fields of firearms and ammunition regulation, with certain limited exceptions, such as for the discharge of firearms. Some have enacted laws preempting only specific subfields of the regulation of firearms, such as licensing and registration of firearms. To understand if, or to what extent, a state preempts local authority over firearms, find the state you are interested in on the home page map, click on the state, and go to “state preemption.”