AG issues opinion on local regulation of firearm sales during declared emergency

Cities and counties may not use emergency declarations to regulate or restrict the sale of firearms, according to a recent nonbinding opinion issued by the Texas attorney general.

The chair of the Texas House Committee on Ways and Means on March 24 requested the opinion after many city and county officials declared local states of disaster and issued stay-at-home orders, as authorized under the Texas Disaster Act of 1975, in response to the ongoing COVID-19 pandemic. The local orders require all nonessential businesses to close, while allowing essential businesses to remain open. The opinion request noted that the stay-at-home orders issued at the time of the request did not designate firearms manufacturers or retailers or shooting ranges as “essential businesses.” Some local orders were revised prior to the attorney general’s opinion to designate firearm businesses as essential.

The March 27 attorney general opinion concluded that while local officials have some power under state law to address disaster situations, that authority is not without limitation. The opinion points to a state firearms preemption statute enacted by the 86th Texas Legislature in 2019. HB 3231 by Clardy added the possession of, carrying of, or commerce in firearms, air guns, knives, ammunition, or firearm or air gun supplies and accessories to the list of activities a city or county is prohibited from regulating under Local Government Code sec. 229.001(a) or sec. 236.002(a). Cities or counties also may not regulate the transfer, ownership, storage, transportation, or licensing of those items or the discharge of a firearm or air gun at a sport shooting range.

Under the law effective on September 1, 2019, an ordinance, resolution, rule, or policy adopted or enforced by a city or county or an official action, including in any legislative, police power, or proprietary capacity, taken by a city or county in violation of Local Government Code sec. 229.001(a) or sec. 236.002(a) is void. The recently issued attorney general opinion says that because of this provision, local officials may not use their emergency powers under Government Code sec. 418.108 to regulate the sale of firearms. The attorney general opinion notes that cities do have some authority under Local Government Code sec. 229.001(b)(4) to “regulate the use of firearms, . . . in the case of an insurrection, riot, or natural disaster if the municipality finds the regulations necessary to protect public health and safety” but that this provision does not grant authority to regulate the transfer, possession, ownership, or sale of firearms.

When HB 3231 was enacted in 2019, supporters said that by updating existing state firearms preemption statutes, the bill would ensure more uniform treatment of firearms and ammunition across the state and would protect the rights of lawful gun owners and firearms retailers. They said it would not affect a city’s or county’s legitimate authority to regulate the discharge of firearms or create and enforce other related ordinances. Critics of HB 3231 said it could have a chilling effect on local officials’ willingness to use their authority to adopt effective public safety measures. They said the bill would enable people to challenge firearms regulations, inviting potentially costly litigation for local taxpayers. In effect, critics said, cities and counties might choose not to pass regulations that could have any effect on firearms, even if authorized by law, for fear of legal liability.

Other states. In their initial stay-at-home orders, states differed on whether firearms retailers were listed as essential businesses. In subsequent revisions or extensions of those orders, some states have continued not to list gun stores as essential businesses, some have reclassified gun stores as essential businesses after initially ordering them to close, and others have allowed gun stores, but not shooting ranges, to remain open.

Those who support classifying firearms retailers as essential businesses say doing so protects the constitutional rights of lawful gun owners and promotes the safety of families, property, and businesses. They say keeping stores open also may reduce sales occurring through unregulated, private transactions. Some have said that gun stores are not essential businesses and that closing them is in line with other measures taken to combat COVID-19, including measures restricting travel and assembly. They have raised concerns that some gun owners, including first-time gun buyers, may not have access to adequate training, and that this could be especially dangerous during a time of rising tension and anxiety.

On March 28, the U.S. Cybersecurity and Infrastructure Security Agency (CISA), the Department of Homeland Security agency that manages risk to critical infrastructure, issued guidance to state, local, tribal, and territorial officials on identifying essential critical infrastructure workers during the COVID-19 response. The guidance lists workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges as part of the essential critical infrastructure workforce. CISA’s guidance is advisory and not a federal directive or standard.

By MacKenzie Nunez

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