Preemption Statute

The Georgia General Assembly has declared the regulation of firearms to be an issue of general, statewide concern.¹ The General Assembly has further enacted a preemption statute, providing that:

“[N]o county or municipal corporation, by zoning, by ordinance or resolution, or by any other means, nor any agency, board, department, commission, political subdivision, school district, or authority of this state, other than the General Assembly, by rule or regulation or by any other means shall regulate in any manner: (A) Gun shows; (B) The possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms or other weapons or components of firearms or other weapons; (C) Firearms dealers or dealers of other weapons; or (D) Dealers in components of firearms or other weapons.”²

Exceptions

Cities and counties are not preempted from enacting any of the following:

• Regulation of the transport, carrying or possession of firearms by county or city employees in the course of their employment
• Local ordinances, resolutions or other enactments requiring heads of households to own guns
• Reasonable limits or prohibitions on the discharge of firearms within the boundaries of the municipal corporation or county³

Interpretation

In the 2002 case Sturm, Ruger & Company v. City of Atlanta,⁴ the Court of Appeals of Georgia relied on a broad interpretation of the preemption doctrine in applying former Georgia Code section 16-11-184 (now recodified as section 16-11-173) to dismiss the city of Atlanta’s negligence claim against gun manufacturers, dealers, and trade associations in connection with the design, marketing and distribution of firearms. The court held that the lawsuit was preempted in several ways.

First, the court held that preemption could be inferred from the comprehensive nature of the state’s regulatory scheme for the distribution and use of firearms, even in the absence of section 16-11-173. Initially, the court pointed out that Ga. Const. art. I, § I, para. VIII (providing a state right to “keep and bear arms”) gives the power to prescribe the manner in which arms may be borne solely to the state’s General Assembly.⁵ The court held that the state had exercised that power by enacting a regulatory scheme for the distribution and use of firearms.⁶ Section 16-11-173(a)(2), (b)(2) had been added after the lawsuit was filed to reserve to the state the authority to file suit in connection with these activities. However, the comprehensive nature of the state’s firearms regulations meant that the lawsuit was preempted even in the absence of the amending provisions.⁷

Second, the court held that Georgia expressly preempted local regulation of firearms pursuant to subsection 16-11-173(b)(1), and this preemption applied to the lawsuit.⁸ The court rejected the argument that a lawsuit to recover damages was not within the fields preempted by the statute and was not a form of regulation. “The practical effect of the preemption doctrine is to preclude all other local or special laws on the same subject. [Citations omitted.] That the City has filed a lawsuit rather than passing an ordinance does not make this any less a usurpation of State power. The City may not do indirectly that which it cannot do directly.”⁹

More recently, in GeorgiaCarry.Org, Inc. v. Coweta County,¹⁰ the Court of Appeals of Georgia held that section 16-11-173 preempted a county ordinance prohibiting firearms on county-owned property.

However, in the 2009 case GeorgiaCarry.Org, Inc. v. City of Roswell,¹¹ the Court of Appeals of Georgia upheld an ordinance that stated that carrying a firearm at a “public gathering” was prohibited “pursuant to” a state law. State law at that time did, in fact, include a provision prohibiting carrying a firearm at a public gathering. The court upheld the ordinance because it created no independent local violation, but merely put the public on notice of the state law.¹²

Other Statutory Provisions

A local government in Georgia may subject firearms dealers, shooting galleries and firearm ranges to a regulatory fee “only if the local government customarily performs investigation or inspection of such businesses or practitioners of such profession or occupation as protection of the public health, safety, or welfare.”¹³ A local government imposing such a regulatory fee must determine the amount of the fee by one of six methods prescribed by statute.¹⁴

Local governments may not retroactively apply regulations or ordinances relating to noise control, noise pollution, or noise abatement “to prohibit conduct at a sport shooting range, which conduct was lawful and being engaged in prior to the adoption or enactment of” such regulations or ordinances.¹⁵

Georgia Code section 36-60-24 provides that the governing authority of a county or municipal corporation shall not prohibit the sale of products listed in section 25-10-1(b), which include “toy pistol paper caps in which the explosive content averages 0.25 grains or less of explosive mixture per paper cap or toy pistols, toy cannons, toy canes, toy guns, or other devices using such paper caps,” or “ammunition consumed by weapons used for sporting and hunting purposes.” However, they “may provide for permits or licenses for the sale or use of consumer fireworks.”¹⁶

Immunity

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

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1. Ga. Code Ann. § 16-11-173(a)(1).[↩]
2. Ga. Code Ann. § 16-11-173(b)(1).[↩]
3. Ga. Code Ann. § 16-11-173(c), (d), (e).[↩]
4. 560 S.E.2d 525 (Ga. Ct. App. 2002).[↩]
5. Id. at 529.[↩]
6. Id.[↩]
7. Id.[↩]
8. Id. at 530.[↩]
9. Id. at 529.[↩]
10. 655 S.E.2d 346 (Ga. Ct. App. 2007).[↩]
11. 680 S.E.2d 697 (Ga. Ct. App. 2009).[↩]
12. Id. at 700-01.[↩]
13. Ga. Code Ann. § 48-13-9(a), (b)(6), (11).[↩]
14. Ga. Code Ann. § 48-13-9(e).[↩]
15. Ga. Code Ann. § 41-1-9(d).[↩]
16. Ga. Code Ann. §§ 36-60-24; 25-10-1(b); 2015 Ga. Laws 50 (H.B. 110) (enacted May 5, 2015).[↩]