Preemption Statutes

Arizona has two statutes that preempt local firearm regulation.

Arizona Revised Statutes section 13-3118 states:

“[e]xcept for the legislature, this state and any agency or political subdivision of this state shall not enact or implement any law, rule or ordinance relating to the possession, transfer, or storage of firearms other than as provided in statute.”

Arizona Revised Statutes section 13-3108 provides that political subdivisions of Arizona may not:

• Enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms or ammunition or any firearm or ammunition components or related accessories in this state¹
• Require the licensing or registration of firearms or ammunition or any firearm or ammunition components or related accessories or prohibit the ownership, purchase, sale or transfer of firearms or ammunition or any firearm or ammunition components or related accessories²
• Require or maintain a record in any form, whether permanent or temporary, including a list, log or database, of any of the following:
  • Any identifying information of a person who leaves a weapon in temporary storage at any public establishment or public event, except that the operator of the establishment or the sponsor of the event may require that a person provide a government issued identification or a reasonable copy of a government issued identification for the purpose of establishing ownership of the weapon. The operator or sponsor must store any provided identification with the weapon and shall return the identification to the person when the weapon is retrieved. The operator or sponsor must not retain records or copies of any identification provided pursuant to this paragraph after the weapon is retrieved.
  • Except in the course of a law enforcement investigation, any identifying information of a person who owns, possesses, purchases, sells or transfers a firearm
  • The description, including the serial number, of a weapon that is left in temporary storage at any public establishment or public event³
• Enact any rule or ordinance that relates to firearms and is more prohibitive than or that has a penalty that is greater than any state law penalty⁴
• Enact any ordinance, rule or regulation limiting the lawful taking of wildlife during an open season established by the Arizona game and fish commission⁵
• Facilitate the destruction of a firearm or purchase or otherwise acquire a firearm for the purpose of destroying the firearm⁶

Section 13-3108 clarifies that the state’s restrictions on local authority apply whether the political subdivision is acting pursuant to its police power, in a proprietary capacity, or otherwise.⁷

Section 17-602(A) provides that outdoor shooting range noise standards are a matter of statewide concern, and expressly preempts city, town, county and any other state noise standards as applied to outdoor shooting ranges.

Exceptions to Arizona’s Preemption Law

Section 13-3108 permits political subdivisions to enact and enforce firearms regulations that:

• Impose privilege and use taxes on the retail sale, lease or rental of firearms or ammunition at the same tax rate applicable to the purchase of other personal property⁸
• Require that a minor who knowingly possesses or carries a firearm in public place or on private property (except private property owned or leased by the minor or the minor’s parent, grandparent or guardian) be accompanied by a parent, grandparent, guardian or certified hunter or firearms safety instructor acting with the consent of a parent, grandparent, or guardian
  • Any ordinance or rule adopted pursuant to this provision does not apply to minors aged 14 through 17 engaged in lawful hunting or shooting events, including transportation of an unloaded firearm for such purposes, and for activities related to agricultural work.⁹
• Relate to the regulation of commercial land and structures, including firearms or ammunition-related businesses or commercial shooting ranges, in the same manner as other commercial businesses¹⁰
  • This provision does not authorize a political subdivision to regulate the sale or transfer of firearms on property it owns, leases, operates or controls in a manner that is different than or inconsistent with state law.
  • This provision also does not authorize a political subdivision through a zoning ordinance to prohibit or regulate the otherwise lawful discharge of a firearm or maintenance or improvements directly related to the discharge on a private lot or parcel of land that is not open to the public on a commercial or membership basis; nor to regulate the otherwise lawful discharge of a firearm or maintenance or improvements directly related to the discharge on land that is used for agriculture or other non-commercial purposes.¹¹
• Regulate employees or independent contractors of the political subdivision who are acting within the course and scope of their employment or contract. In 2017, the state limited this authority by prohibiting political subdivisions from regulating the possession, carrying, transportation, and storage of firearms by employees or contractors when they are on their own property or in their own vehicles.¹²
• Limit or prohibit the discharge of firearms in certain parks and preserves¹³

Interpretation

In 1978, the Attorney General of Arizona opined that state law would preempt an ordinance generally prohibiting the carrying of a firearm outside one’s own real property.¹⁴

In 1998, in City of Tucson v. Rineer, the Arizona Court of Appeals rejected a section 13-3108(A) challenge to a Tucson ordinance that prohibited the use or possession of firearms within city parks.¹⁵ The court rejected the argument that the statute occupies the entire field of firearms regulation, stating that while the statute prohibits political subdivisions from enacting certain firearm-related ordinances, the statute “is specific in its prohibitions” and had the legislature intended that the statute preclude all local regulation of possessing or carrying weapons, it would have expressly said so.¹⁶ The court also found that the provisions in section 13-3108(B) would be superfluous if section 13-3108(A) precluded all local firearms regulation.¹⁷ Note that, in 2010, the Arizona Legislature removed local authority to limit firearm possession in certain parks and preserves.¹⁸

The Court of Appeals again rejected a section 13-3108 challenge to a local firearm-related regulation in McMann v. City of Tucson.¹⁹ In McMann, gun show promoters argued that section 13-3108 preempted a Tucson regulation requiring, as a condition of the promoter’s use permit, instant background checks for prospective gun purchasers at gun shows held at the Tucson Convention Center (TCC).²⁰ The court held that the legislature had not clearly manifested an intent to preempt Tucson from requiring background checks on prospective firearms purchasers at events held at the TCC.²¹

In 2003, following the McMann case, the Legislature amended section 13-3108(G)(3)(a), which permits local jurisdictions to regulate the land and structures of firearms and ammunition-related businesses in the same manner as other commercial businesses, to include the following provision:

“Notwithstanding any other law, [section 13-3108] does not authorize a political subdivision to regulate the sale or transfer of firearms on property it owns, leases, operates or controls in a manner that is different than or inconsistent with state law. For the purposes of [section 13-3108], a use permit or other contract that provides for the use of property owned, leased, operated or controlled by a political subdivision shall not be considered a sale, conveyance or disposition of property. “

Finally, in 2017, in State ex rel. Brnovich v. City of Tucson, the Supreme Court of Arizona considered the City of Tucson’s 12-year-old ordinance that allowed the Tucson Police Department to reuse or destroy unclaimed and forfeited guns. Since 2013, Arizona state law had required those guns be resold. The State asked Tucson to repeal its gun-destruction ordinance; Tucson refused. In 2016, Arizona enacted SB 1487, which gives the State authority to withhold revenue from a local entity that refuses to repeal an ordinance the State finds to be in conflict with State law.

Tucson conceded that its ordinance was in conflict with state law, but argued that SB 1487 violated Tucson’s home rule authority to regulate matters of local concern. The court rejected Tucson’s argument, finding that the subject matter of the laws at issue − the Tucson Police Department’s disposition of property, the conduct of Tucson Police Department employees, and the regulation (which includes the disposition) of firearms − implicate police power, an authority generally left to the state. The court also noted that while it agreed with the State and the NRA’s assertion that preserving the federal and state right to bear arms is a subject of state concern, it declined to decide that issue in light of all the other reasons the law at issue implicated a state concern.

The court noted the only two instances in which it has upheld local laws that were inconsistent with state law because the local laws were “purely municipal affairs” or of only “local interest or concern” – where local laws directed the method and manner by which (1) local elections are held in a city and (2) real estate owned by the city is disposed of. The court rejected Tucson’s argument that a proprietary interest should be pivotal and Tucson’s suggestion to adopt a California-like balancing test to determine if a state-wide interest is “sufficiently concrete and identifiable” to outweigh a home-rule city’s local interest in self-government.

Extreme Preemption

Arizona’s firearms preemption statute provides for penalties against subdivisions and their officials for violating the preemption law. Specifically, section 13-3108 provides that any law or rule enacted by a subdivision in violation of the preemption law is invalid, makes any official who violates the state’s preemption law personally liable, and grants standing to membership organizations to sue to challenge the law and recover attorneys’ fees.²²

Section 13-3108 also provides that if a court determines a political subdivision has knowingly violated the preemption law, the court may assess a civil penalty of up to $50,000, and if a court determines that a state official enacting a law or rule knowingly violated the preemption law, that person may be subject to termination.²³

In 2016, Arizona enacted SB 1487, which gives the State authority to withhold revenue from a local entity that refuses to repeal an ordinance the State finds to be in conflict with State law.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Arizona.

MEDIA REQUESTS

Our experts can speak to the full spectrum of gun violence prevention issues. Have a question? Email us at media@giffords.org.

Contact

1. Ariz. Rev. Stat § 13-3108(A).[↩]
2. Ariz. Rev. Stat § 13-3108(B).[↩]
3. Ariz. Rev. Stat § 13-3108(C)(1)-(3).[↩]
4. Ariz. Rev. Stat § 13-3108(D). A political subdivision’s rule or ordinance that relates to firearms and that is inconsistent with or more restrictive than state law, whether enacted before or after July 29, 2010, is null and void. Id.[↩]
5. Ariz. Rev. Stat § 13-3108(E). Except rules that regulate firearm discharge within 1/4 mile of an occupied structure.[↩]
6. Ariz. Rev. Stat § 13-3108(F). Except as authorized by Arizona law governing the forfeiture of weapons and the destruction of weapons used unlawfully to hunt.[↩]
7. Ariz. Rev. Stat § 13-3108(M).[↩]
8. Ariz. Rev. Stat § 13-3108(G)(1).[↩]
9. Ariz. Rev. Stat § 13-3108(G)(2).[↩]
10. But see 17-602(A), which states that outdoor shooting range noise standards are a matter of statewide concern.[↩]
11. Ariz. Rev. Stat § 13-3108(G)(3). It should be noted that for the purposes of this provision, a use permit or other contract that provides for the use of property owned, leased, operated or controlled by a political subdivision shall not be considered a sale, conveyance or disposition of property. Ariz. Rev. Stat § 13-3108(G)(3)(a).[↩]
12. Ariz. Rev. Stat § 13-3108(G)(4).[↩]
13. Ariz. Rev. Stat § 13-3108(G)(5). Narrow exceptions exist to this area of regulation, including the discharge of firearms on properly supervised ranges, in approved hunting areas, to control nuisance wildlife, if in possession of a special permit issued by the chief law enforcement officer of the political subdivision, if working as an animal control officer, or in self-defense or defense of another person against an animal attack if a reasonable person would believe that deadly physical force was necessary. Ariz. Rev. Stat § 13-3108(G)(5)(a)-(g).[↩]
14. Op. Ariz. Att’y Gen. I78-274, 1978 Ariz. AG LEXIS 16 (Nov. 3, 1978).[↩]
15. 971 P.2d 207 (Ariz. Ct. App. 1998), superseded by statute, 2010 Ariz. ALS 19.[↩]
16. Id. at 210.[↩]
17. Id.[↩]
18. 2010 Ariz. ALS 19.[↩]
19. 47 P.3d 672 (Ariz. Ct. App. 2002), superseded by statute, 2003 Ariz. ALS 162 § 1.[↩]
20. Id. at 674.[↩]
21. Id. at 678.[↩]
22. Ariz. Rev. Stat § 13-3108(H)-(K).[↩]
23. Ariz. Rev. Stat § 13-3108(I)-(J).[↩]