Difference between revisions of "State Preemption of Some Gun Regulation"

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(update code references and text for 2012 numbering)
(State Preemption of Some Gun Regulation)
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As an example of what the State ''could have'' done, the [http://codes.lp.findlaw.com/cacode/GOV/1/5/d2/1/1/4/s53071.5 next piece] of Government Code says
 
As an example of what the State ''could have'' done, the [http://codes.lp.findlaw.com/cacode/GOV/1/5/d2/1/1/4/s53071.5 next piece] of Government Code says
  53071.5 By the enforcement of this section, the Legislature occupies the
+
  53071.5 By the enforcement of this section, the Legislature
  whole field of regulation of the '''manufacture''', '''sale''', or '''possession'''
+
occupies the  whole field of regulation of the '''manufacture''', '''sale''', or '''possession'''
  of [[imitation firearms]], as defined in Section 12550 of the Penal
+
  of [[imitation firearms]], as defined in Section 12550 of  
  Code, and that section shall preempt and be exclusive of all
+
  the Penal Code, and that section shall preempt and be
regulations relating to the manufacture, sale, or possession of
+
exclusive of all regulations relating to the manufacture,
imitation firearms, including regulations governing the
+
sale, or possession of imitation firearms, including
manufacture, sale, or possession of BB devices and air rifles
+
regulations governing the manufacture, sale, or possession of
described in Section 16250 of the Penal Code.
+
BB devices and air rifles described in Section 16250 of the
 +
Penal Code.
  
 
The legislature understands the mechanics of how to write laws; ordinarily, when presented with two examples such as these, it is reasonable to conclude the differences are both deliberate and significant.
 
The legislature understands the mechanics of how to write laws; ordinarily, when presented with two examples such as these, it is reasonable to conclude the differences are both deliberate and significant.

Revision as of 04:18, 12 March 2015

State Preemption of Some Gun Regulation

State preemption in Government Code is really quite narrow:

53071. It is the intention of the Legislature to occupy the whole
field of regulation of the registration or licensing
of commercially manufactured firearms as encompassed by
the provisions of the Penal Code, and such provisions shall be
exclusive of all local regulations, relating to registration or
licensing of commercially manufactured firearms, by any
political subdivision as defined in Section 1721 of the Labor
Code.

All the state pre-empts is registration and licensing by any other entity. Possession? Sale? Not covered.

Regulation outside the scope of 53071 is not preempted. California's First Appellate District Court interpreted this section in Fiscal v. City and County of San Francisco in light of San Francisco's Proposition H which attempted to ban possession of firearms in San Francisco.

As an example of what the State could have done, the next piece of Government Code says

53071.5 By the enforcement of this section, the Legislature
occupies the  whole field of regulation of the manufacture, sale, or possession
of imitation firearms, as defined in Section 12550 of 
the Penal Code, and that section shall preempt and be
exclusive of all regulations relating to the manufacture,
sale, or possession of imitation firearms, including
regulations governing the manufacture, sale, or possession of
BB devices and air rifles described in Section 16250 of the
Penal Code.

The legislature understands the mechanics of how to write laws; ordinarily, when presented with two examples such as these, it is reasonable to conclude the differences are both deliberate and significant.