Preemption Statute
Traditionally, Illinois had broadly permitted local jurisdictions to enact their own ordinances regulating firearms. A law adopted by the General Assembly in 2013, however, significantly curtailed this broad authority in several areas.1 The Firearm Owners Identification (FOID) Card Act of 2013 requires an individual to obtain a license called a FOID Card before acquiring or possessing any firearm or ammunition. The amended FOID Card Act states:
” …the regulation, licensing, possession, and registration of handguns and ammunition for a handgun, and the transportation of any firearm and ammunition, including but not limited to the delivery of ammunition by the United States Postal Service or other courier, by a holder of a valid Firearm Owner’s Identification Card issued by the Department of State Police under this Act are exclusive powers and functions of this State.2 “
According to the amended FOID Card Act, any ordinance or regulation, or portion thereof, enacted on or before the date of the Amendment (July 9, 2013) that imposed regulations or restrictions on a holder of a valid FOID Card in a manner that is inconsistent with the FOID Card Act, is invalid in its application to a holder of a valid FOID Card.3
The amended FOID Card Act also deems the regulation of the possession or ownership (but not sales) of assault weapons an exclusive power of the state, and provides that any ordinance that regulates the possession or ownership of assault weapons in a manner inconsistent with the amended FOID Card Act is invalid.4 For purposes of this provision, “assault weapons” are defined as firearms designated by either make or model or by a test or list of cosmetic features that cumulatively would place the firearm into a definition of “assault weapon” under the ordinance.5 The Act allows ordinances regulating the possession or ownership of assault weapons that were adopted on, before, or within 10 days after July 9, 2013 to remain in force.6
However, the amended FOID Card Act left in place a provision that states that, except as described above, “[t]he provisions of any ordinance enacted by any municipality which requires registration or imposes greater restrictions or limitations on the acquisition, possession and transfer of firearms than are imposed by [the FOID Card Act], are not invalidated or affected by this Act.”7 “Municipality” is defined to include cities, villages or incorporated towns, but not townships, counties or park districts.8
The amended FOID Card Act explicitly states that its provisions are a denial and limitation of home rule powers and functions under Art. VII, § 6(h) of the Illinois Constitution.910
The 2013 law also created a licensing system for the carrying of concealed handguns. As part of that system, the 2013 law states:
“The regulation, licensing, possession, registration, and transportation of handguns and ammunition for handguns by [concealed handgun] licensees are exclusive powers and functions of the State. Any ordinance or regulation, or portion thereof, enacted on or before [July 9, 2013] that purports to impose regulations or restrictions on licensees or handguns and ammunition for handguns in a manner inconsistent with this Act shall be invalid in its application to licensees under this Act on [July 9, 2013]. This Section is a denial and limitation of home rule powers and functions under [Ill. Const., Art. VII, § 6(h)].“11
Following these major alterations to local regulatory authority involving firearms, the permissible scope of cities and counties in Illinois to regulate firearms has narrowed. For further information about preemption in Illinois, please contact the Law Center directly.
Immunity
For state laws prohibiting certain types of lawsuits against firing ranges and the gun industry, see our page on Immunity Statutes in Illinois.
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- 2013 ILL. ALS 63, 2013 Ill. Laws 63, 2013 ILL. P.A. 63, 2013 ILL. HB 183. By way of background, in June 2010, the U.S. Supreme Court held that the Second Amendment applies to state and local governments. McDonald v. Chicago, 130 S. Ct. 3020 (2010). In so ruling, the Court reversed a U.S. Seventh Circuit Court of Appeals decision that affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park, Illinois. This right, as first delineated in District of Columbia v. Heller, 554 U.S. 570 (2008), guarantees the individual right of a law-abiding citizen to possess a firearm in the home for self-defense. McDonald effectively rendered unconstitutional handgun possession bans in Chicago, Oak Park and other Illinois communities, to the extent that their bans restricted gun possession in the home for self-defense. Heller and McDonald also implicitly overruled (or at least diminished the impact of) Kalodimos v. Village of Morton Grove, 470 N.E.2d 266 (Ill. 1984), a key Supreme Court of Illinois decision that held that when the state enacts statutes that relate to the ownership, possession or sale of firearms, it does not preempt the field of firearms regulation, but permits local laws further regulating or restricting firearms.[↩]
- 430 Ill. Comp. Stat. 65/13.1(b).[↩]
- Id.[↩]
- 430 Ill. Comp. Stat. 65/13.1(c).[↩]
- Id.[↩]
- Id.[↩]
- 430 Ill. Comp. Stat. 65/13.1[↩]
- 65 Ill. Comp. Stat. 5/1-1-2(1).[↩]
- 430 Ill. Comp. Stat. 65/13.1(e).[↩]
- The Illinois Constitution grants home rule units broad authority to “exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare….” Ill. Const. Art. VII, § 6(a). The only limits on a home rule unit’s autonomy are those imposed by the Constitution, or by the legislature exercising its authority to preempt home rule where it specifically declares its exercise to be exclusive. See Ill. Const. Art. VII, § 6(g), (h), (i). To do this, the General Assembly must pass a statute expressly preempting home rule authority and stating what particular home rule powers are preempted. See, e.g., City of Chicago v. Roman, 705 N.E.2d 81, 86-89 (1998) (discussing preemption of home rule authority under Illinois constitution). A “home rule” unit is defined as a “[c]ounty which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000….Other municipalities may elect by referendum to become home rule units.” Ill. Const., Art. VII, § 6(a).[↩]