Article 4, § VII, par. 11 of the New Jersey State Constitution1 confers broad regulatory powers on municipalities and counties:
“The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law. “
New Jersey Statutes Annotated § 40:41A-27(b) expressly permits charter counties, subject to their charters, New Jersey general laws, and the New Jersey State Constitution, to, inter alia, “[a]dopt, amend, enforce, and repeal ordinances and resolutions.”
New Jersey Statutes Annotated § 40-48-2 grants municipalities2 the authority to enact ordinances, regulations, rules and by-laws that are consistent with state and federal law for, inter alia, the “preservation of the public health, safety and welfare of the municipality and its inhabitants.”3 And New Jersey Statutes Annotated § 40:41A-28 recognizes municipalities as broad repositories “of local police power in terms of the right and power to legislate for the general health, safety and welfare of their residents.”
With specific regard to firearms, New Jersey Statutes Annotated § 40:48-1(18) explicitly authorizes municipalities to “[r]egulate and prohibit the sale and use of guns, pistols, [and] firearms…”
Furthermore, the New Jersey State Legislature has codified its intent that the New Jersey Code of Criminal Justice preempt conflicting local regulation, either by inclusion or exclusion of a provision in the code. New Jersey Statutes Annotated § 2C:1-5(d) provides:
“Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code [the New Jersey Code of Criminal Justice] or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code. “
Under this statutory provision, the absence of a state ban on certain conduct could indicate a legislative intent to “decriminalize” that conduct, and local regulation prohibiting such conduct could be deemed preempted by exclusion under section 2C:1-5(d).4 Moreover, the regulation of a subject matter in the New Jersey Code of Criminal Justice may preempt a municipal ordinance from regulating that same subject matter.5
Common Law Preemption Jurisprudence In New Jersey
The broad regulatory authority granted to local government in New Jersey is further constrained by the jurisprudential doctrine of preemption.
In Overlook Terrace Management Corp. v. Rent Control Board of West New York,6 the Supreme Court of New Jersey developed a two-step test to determine whether state law preempts a municipality from regulating a particular subject matter. Under this test, a court must initially determine “whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the State has acted.”7 If the subject matter is not the same, “preemption is clearly inapplicable.”8 If it is the same, the court must then consider the following five factors to determine if the legislature intended to preempt the subject matter:
- Whether the ordinance conflicts with state law, either because of conflicting policies or operational effect (i.e., does the ordinance forbid what the legislature has permitted or permit what the legislature has forbidden?)
- Whether the legislature intended, expressly or impliedly, that state law be exclusive in the field
- Whether the subject matter reflects a need for uniformity
- Whether the state scheme is so pervasive or comprehensive that it precludes the coexistence of municipal regulation
- Whether the ordinance stands “as an obstacle to the accomplishment and execution of the full purposes and objectives” of the legislature9
In Township of Chester v. Panicucci,10 the Supreme Court of New Jersey held that a state statute regulating firearm discharge for hunters did not preempt a more stringent local law regulating firearm discharge for hunting and other activities. The court determined that the legislature did not intend to completely occupy the field of hunting safety to “preclude municipalities from also dealing with local aspects of the problem.”11 The court also held that the legislature did not intend to preempt the field of firearm control when it adopted a state gun control scheme, and that section 40:48-1(18) may be used by municipalities to regulate the sale and use of firearms.12
Note that Panicucci was decided before the Supreme Court adopted the preemption factors in Overlook Terrace, before the enactment of section 2C:1-5(d), and before the enactment of many of New Jersey’s firearm-related statutes. As such, its authoritative value today for the authority of municipalities to regulate firearms is uncertain. However, in State v. Crawley (discussed above), a case decided after Overlook Terrace and after the enactment of section 2C:1-5(d), Supreme Court of New Jersey, in holding that the legislature’s repeal of a state law prohibiting loitering preempted by exclusion a Newark ordinance that criminalized loitering, noted and essentially reaffirmed its finding in Panicucci that a municipal ordinance will not be invalidated on preemption grounds merely because it deals with substantially the same subject matter as a state statute.13
Moreover, in Faraci v. Monmouth County Bd. of Rec. Comm’rs, a state appeals court found, in an unpublished opinion, that a municipal ordinance banning the discharge of firearms and other weapons was in conflict with, and preempted by, a county measure adopted pursuant to state authority that specifically intended to enable county commissioners to have exclusive control over the regulation of county parks.14 The appeals court found that the municipal ordinance met all five Overlook Terrace factors, favoring preemption, and noted that its decision was consistent with the ruling in Panicucci.
Finally, in 2008, in Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, a New Jersey appeals court affirmed a superior court ruling that had invalidated a Jersey City ordinance limiting handgun sales and purchases to one per person within a 30-day period, on the grounds that state law preempted the local law.15 However, that appellate court opinion and judgment were vacated, and the appeal dismissed as moot, by the Supreme Court of New Jersey after the state legislature adopted an identical 30-day handgun sales limitation while the appeal was still pending.16
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- “New Jersey State Constitution 1947. Updated through amendments adopted in November 2017.” New Jersey State Legislature, accessed November 19, 2018, https://www.njleg.state.nj.us/lawsconstitution/constitution.asp.
- The definition of “municipalities” includes cities, towns, townships, villages, and boroughs, and any “municipality governed by a board of commissioners, or improvement commission.” N.J. Stat. Ann. § 40:42-1.
- In 1973, the New Jersey Supreme Court recognized that N.J. Stat. Ann. § 40:48-2 grants municipalities “broad police power over matters of local concern and interest.” Twp. of Chester v. Panicucci, 299 A.2d 385, 387-88 (N.J. 1973).
- See, e.g., State v. Crawley, 447 A.2d 565 (N.J. 1982) (The legislature’s repeal of a state law prohibiting loitering had the effect of preempting by exclusion a Newark ordinance that criminalized loitering).
- See, e.g., G.H. v. Township of Galloway, 951 A.2d 221, 238 (App.Div. 2008), aff’d, 971 A.2d 401, (N.J. 2009) (holding that municipal ordinances prohibiting convicted sex offenders from living within specified distances of schools and other designated facilities were preempted by state law regulating convicted sex offenders).
- 366 A.2d 321 (N.J. 1976).
- Id. at 326.
- 299 A.2d 385 (N.J. 1973).
- Id. at 389.
- Id. at 390.
- Crawley, 447 A.2d at 570.
- 2010 N.J. Super. Unpub. LEXIS 151, at *10-*11.
- 955 A.2d 1003 (N.J. Super. Ct. App. Div. 2008).
- See Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 992 A.2d 1 (N.J. 2010).