Preemption Statute

The Michigan Legislature has adopted firearms preemption statute. Section 123.1102 of the Michigan Compiled Laws Service provides:

“A local unit of government¹ shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state.”

Exceptions

Section 123.1103 permits local units of government to regulate firearms in very limited ways. Local units of government may prohibit or regulate:

• Conduct with a firearm that is a criminal offense under state law²
• Transportation, carrying, or possession of firearms by their employees in the course of employment with the local unit of government³
• Discharge of firearms within the jurisdiction of a city or charter township⁴

Interpretation

In 2018, the Supreme Court of Michigan had occasion to interpret section 123.1102. In Michigan Gun Owners, Inc. v. Ann Arbor Public. School,⁵ the defendants, the Ann Arbor and Clio school districts, each had a policy banning firearms on school property. The plaintiffs asserted that state law preempted these policies. The court found that the school districts’ firearms bans were not expressly preempted by section 123.1102 because that section only preempts regulation by a “local unit of government,” which includes “a city, village, township, or county,” but not a school district.⁶ The court also held that it need not determine whether the school districts’ firearms bans were impliedly preempted by a legislative intent to occupy the field of firearms regulation because section 123.1102 already expressed the legislature’s intent with regard to a local unit of government’s authority to regulate firearms.⁷

The Michigan Court of Appeals reached a similar conclusion in 2017 in Wade v. University. of Michigan., holding that the Board of Regents of the University of Michigan is a constitutional corporation more equated with a state-level agency rather than a local government, and therefore outside the ambit of section 123.1102.⁸

In Michigan Coalition for Responsible Gun Owners v. City of Ferndale, the Court of Appeals of Michigan sustained a section 123.1102 challenge to a city ordinance making public buildings gun-free zones.⁹ In sustaining the challenge, the court analyzed whether the state legislature had impliedly preempted the ordinance by occupying the field of law regulating the carrying or possession of firearms. The court stated that section 123.1102 demonstrates that “in effect, state law completely occupies the field of regulation that the Ferndale ordinance seeks to enter,” namely, the carrying or possession of firearms.¹⁰ According to the court, the ordinance would only be allowable if a federal or state law existed that expressly permitted the regulation.¹¹ Finding no law allowing the Ferndale ordinance, the court determined that the ordinance was preempted by section 123.1102.¹²

Note that in Michigan Gun Owners, discussed above, the Supreme Court of Michigan held that section 123.1102 obviates the need for a field preemption analysis in firearms regulation challenges because the statute already expresses the legislature’s intent with regard to local regulation of firearms. Based on that finding, the court went on to expressly overrule the proposition enunciated by the Michigan Court of Appeals in Michigan Coalition for Responsible Gun Owners, and followed in Capital Area District Library v. Michigan Open Carry, Inc.,¹³ that section 123.1102 “completely occupies the field of [firearms] regulation.”¹⁴

In Morgan v. United States DOJ a federal district court held that a Redford Township zoning ordinance restricting the sale of firearms in a designated residential area was not preempted by section 123.1102.¹⁵ The Bureau of Alcohol, Tobacco, Firearms and Explosives denied renewal of plaintiff’s federal firearms license over concerns that the township interpreted its residential zoning plan as prohibiting the sale of firearms in premises located in residential districts. Plaintiff sued on several grounds, including that section 123.1102 preempted the zoning restriction. The court found that section 123.1102 does not preempt the zoning restriction because “zoning ordinances of general application merely regulate the location of certain categories of businesses, activities, or dwellings” and do not enter into the substantive field of regulation governing a particular business, activity or dwelling.¹⁶

The Michigan Attorney General has opined that local units of government “may not require an applicant for a license to purchase a pistol to provide his or her fingerprints” before issuance of the license.¹⁷ While the opinion was supported by several statutes, the Attorney General found primary support for this conclusion in section 123.1102, which, in the Attorney General’s opinion, occupies the “field of firearm regulation.”¹⁸

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 Michigan.

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1. A “local unit of government” is defined as “a city, village, township, or county.” Mich. Comp. Laws Serv. § 123.1101(b).[↩]
2. Mich. Comp. Laws Serv. § 123.1103(a).[↩]
3. Mich. Comp. Laws Serv. § 123.1103(b).[↩]
4. Mich. Comp. Laws Serv. § 123.1104(a).[↩]
5. 2018 Mich. LEXIS 1568.[↩]
6. Id. at *5-6.[↩]
7. Id. at *7-*8.[↩]
8. 320 Mich. App. 1, *21 (2017).[↩]
9. Mich. Coalition for Responsible Gun Owners v. City of Ferndale, 256 Mich. App. 401, 418 (2003).[↩]
10. Id. at 414.[↩]
11. Id. at 414-15.[↩]
12. Id. at 415-18.[↩]
13. 298 Mich. App. 220, 239 (2012).[↩]
14. Id. at *9, quoting Mich. Coalition for Responsible Gun Owners v. City of Ferndale, 256 Mich. App. 401, 414 (2003).[↩]
15. 473 F. Supp. 2d 756, 771 (E.D. Mich. 2007), aff’d on other grounds, Morgan v. Fed. Bureau of Alcohol, Tobacco & Firearms, 509 F.3d 273 (6th Cir. 2007), cert. denied, Morgan v. BATFE, 2008 U.S. LEXIS 3900 (2008).[↩]
16. Id. at 770 (emphasis in original).[↩]
17. Mich. Op. Att’y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *8.[↩]
18. Mich. Op. Att’y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *7.[↩]