State Preemption of Local Legislation Is Getting Worse

Some bills forbid cities from passing tougher gun regulations than what already exists in state laws.

Some bills forbid cities from passing tougher gun regulations than what already exists in state laws. Arina P Habich/Shutterstock


Connecting state and local government leaders

A new report shows that state legislatures have been expanding their reach in preempting cities from localized regulation on issues like gun control.

The AR-15-style gun that Connor Betts used to kill nine people and injure 27 more on August 4 would have been illegal in Dayton before 2006. But that year, Ohio passed HB 347, which wiped out assault weapon bans and other gun control ordinances in roughly 80 cities throughout the state, including Dayton. That bill forbade cities from passing tougher gun regulations than what already exists in state laws. Ohio is one of 43 states that have laws that preempt or preclude cities and municipal governments from creating their own gun control ordinances—this despite the fact that cities bear the brunt of gun violence in most states.

State preemption laws cover far more ground than just gun activity, though. They are responsible for handcuffing cities from managing issues across the board: taxation, zoning, local land use, business practices, climate-change adaptation, and even what kind of monuments can and can’t be displayed. Cities should be concerned now that the power-grip of state preemption laws has been growing tighter over the last decade, according to a new report, “The Growing Shadow of State Interference,” produced by the Local Solutions Support Center and the State Innovation Exchange.

The report’s conclusion is outright chilling:

Local governments lost power again in 2019. Many state legislatures continued the trend started in 2011 of passing more, broader, and punitive preemption laws. Those laws, driven almost exclusively by special interests, once again stopped cities, towns and counties from acting to protect and promote the health, safety and civil rights of their residents.

The year 2011 marked the start of an era when, thanks to the U.S. Supreme Court’s 2010 Citizens United v. Federal Election Commissionruling, corporations were able to contribute far more to political campaigns (indirectly) than ever before. Many analysts said that this threw a significant advantage to Republican candidates who often vote in businesses’ financial interests. By 2011, Republicans picked up 675 state legislature seats, took control of 25 state legislatures (up from 14 the year before) and claimed 21 state trifectas—where Republicans controlled state house, senate, and governors’ offices (up from nine the year prior).

While both of the major political parties have a history of imposing state laws that override local ordinances, the preemption advantages of the past decade have tilted far more in favor of rural and conservative suburban legislative districts that typically vote Republican. The result is that, on top of the 43 states that overpower the ability of cities to regulate guns, there are now:

  • 44 states that prohibit cities from regulating ride-hailing companies such as Uber and Lyft;
  • 31 states that bar cities’ local rent-control policies;
  • 25 states that restrict cities from raising the minimum wage;
  • 23 states that ban local paid sick leave laws;
  • and 20 states that block or ban municipal broadband networks.

According to the report, “2019 has seen a historically large number of preemption bills filed in some states,” many of them attacking local ordinances that were passed to strengthen protections for people of color and LGBTQ communities. This year, Arkansas and Florida became the 10th and 11th states to prohibit cities from taking on sanctuary policies to protect immigrants—in fact, “anti-sanctuary city and immigrant enforcement bills were filed in more states than any other type of preemption bill,” reads the report.

Meanwhile, Texas passed a “Save Chick-Fil-A” law earlier this summer after San Antonio voted to remove the fast-food company from its airport, due to Chick-Fil-A’s support of religious groups that discriminate against gay people. In 2016, Alabama’s legislature passed a preemption bill to overturn Birmingham’s vote to raise the city’s minimum wage—an ordinance passed with the express mission to close racial wage gaps in the city.

States have also increasingly been striking back with laws that punish local governments for passing (or even attempting to pass) ordinances that might run afoul of state preemption laws. This is where the city’s right to control guns comes back into play. In Florida, even before the mass shooting in Parkland that claimed the lives of 17 students and adults, cities had been passing local gun control ordinances in defiance of state laws that forbid them.

In 2011, the state passed a law that not only fined local elected officials who passed such ordinances ($5,000), but also would remove them from office. Pro-gun-control cities sued the state over this issue, and they prevailed in late July, when a court ruled that the preemption laws’ punitive measures were unconstitutional.

The state legislature, meanwhile, escalated the conflict by passing a bill that would require courts to make cities pay court fees, costs, and damages if a court rules that a city’s ordinance defied state preemption laws—which the NRA counted as a victory against gun control. (Former Tallahassee mayor and one-time gubernatorial candidate Andrew Gillum has been bulletproof in this regard, having prevailed in a legal challenge to his city’s ordinance that bans guns in city parks).

Earlier this year, Pittsburgh Mayor Bill Peduto and the city council ignored state preemption laws to pass three local gun control ordinances after white nationalist Robert Gregory Bowers killed 11 people in the Tree of Life synagogue. (One of those ordinances calls for a “red flag” measure similar to the one Donald Trump and Congress is calling for right now.) Those ordinances immediately were halted with lawsuits from groups that oppose gun control measures, and even the county’s district attorney weighed in with threats against the city for passing them. Still, Peduto has only strengthened his call for local rights to gun control, particularly in the days after mass shootings in Gilroy, El Paso, and Dayton, which is fewer than five hours from Pittsburgh.

It’s impossible to say whether the shooting in Dayton would’ve happened had the city’s assault weapons ban not been reversed by Ohio’s state preemption law back in 2006. The shooter, Betts, was able to manipulate and maneuver through several loopholes to purchase and modify the AR-15-style gun he used. What we do know is that gun-related deaths have increased almost every year in Ohio since the state overturned its local gun control laws. The majority of those gun deaths have occurred in Ohio’s major cities: Cleveland, Cincinnati, Columbus, Toledo, Akron, and Dayton. Those cities happen to all be the places where state legislators voted against the 2006 state preemption law, in order to protect cities’ abilities to address gun violence on their own terms.

Pretty much all of the rural parts of Ohio voted for the preemption law. This means the urban areas where gun homicides are most prevalent have their hands tied in mitigating these circumstances by rural legislators who have little connection to these cities and the problems they face. But those rural districts have not been immune to gun-related deaths—suicides by gun have increased by 63 percent in those parts since 2007. Rural gun-related homicides have increased in that time period as well.

Meanwhile, it has been popular among conservatives lately to single out and blame cities for homicide and violent crime rates. It’s not so appealing to own up to the state and federal policies that hamstring cities from doing something about that.

Brentin Mock is a staff writer for CityLab.

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