Citation(s) from the literature library

Giffords Law Center to Prevent Gun Violence. 2021 ‘Preemption of Local Laws in Washington DC.’ Other Laws & Policies. San Francisco, CA: Giffords Law Center to Prevent Gun Violence. 8 December

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[Editor's note: The Giffords Law Center to Prevent Gun Violence regularly updates its webpages with new data as US gun regulation evolves state by state. For the most up-to-date information on US gun laws, please refer to the Giffords URL below]

Local Authority to Regulate Firearms in the District of Columbia

The District of Columbia has broad authority to regulate firearms. The District derives legislative powers from the Home Rule Act, enacted in 1973. Section 1-303.43 incorporates an earlier grant of power (formerly § 1-321; originally § 1-227, enacted in 1906) authorizing the District Council to make and enforce laws regulating firearms and ammunition. The statute provides that:
The Council of the District of Columbia is hereby authorized and empowered to make, and the Mayor of the District of Columbia is hereby authorized and empowered to enforce, all such usual and reasonable police regulations…as the Council may deem necessary for the regulation of firearms, projectiles, explosives, or weapons of any kind in the District of Columbia.

In McIntosh v. Washington, 395 A.2d 744 (D.C. 1978), the District of Columbia Court of Appeals rejected a challenge to the District's Firearms Control Regulations Act of 19752, relating to the use and sale of firearms. Appellants argued that the City Council was without authority to adopt the Act because the legislative history of section 1-147(a)(9)3) of the Home Rule Act, requiring elected Council members to wait 24 months after taking office before enacting certain legislation, demonstrated Congress' intent to prohibit the District from adopting a comprehensive criminal regulatory scheme. The court rejected this argument, holding that the statute does not limit the District's authority to enact firearms regulations that do not conflict with existing Congressional regulation for the District.

The court noted that the federal Gun Control Act of 1968 explicitly provides that Congress has no intent to occupy the field of gun regulation to the exclusion of state law touching on the same subject matter "unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together. [Emphasis added.]" Finding no "direct and positive" conflict between the District's gun control regulations and the Home Rule Act, the court stated:

[A] parallel enactment in a given area cannot be stricken simply because it expands the scope of restrictions imposed by a parent legislative body. The Firearms Act, much like the predecessor gun control regulations upheld in Pistol Ass'n, fits within the general pattern of antecedent congressional enactments.

In Maryland & District of Columbia Rifle and Pistol Ass'n, Inc. v. Washington, 442 F.2d 123 (D.C. Cir. 1971), a case decided before enactment of the Home Rule Act, the U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the District's local police firearm regulations (D.C. Pol. Reg. Arts. 50-55, subsequently repealed and replaced by D.C. Code Ann. § 7-2501.01 et seq.). The court held that the enactment of firearm legislation for the District by the U.S. Congress did not preempt the District Council's right to adopt additional firearms regulations pursuant to an act of 1906 authorizing the Council to make and enforce all regulations deemed necessary for the regulation of firearms. The court concluded that the existence of both Congressional and District regulation on the same subject matter was not problematic, as long as the two regulatory schemes did not conflict. The court stated:

The important consideration, we think, is not whether the legislature and municipality have both entered the same field, but whether in doing so they have clashed. Statutory and local regulation may coexist in identical areas although the latter, not inconsistently with the former, exacts additional requirements, or imposes additional penalties.

in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the U.S. Supreme Court found that the District's decades-old ban on handgun possession and its requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device were unconstitutional violations of the Second Amendment. In Heller, the Court held that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense, and struck down the handgun possession ban as well as the safe storage law (which had no exception for self-defense). The District must now take into consideration this right under the Amendment when adopting firearm-related laws…

ID: Q7704

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