Florida Supreme Court to decide important firearms regulation case

by Elad Hakim

Photo: Alamy

Next week, the Florida Supreme Court will hear arguments in an important gun-related case. The legality of a 2011 state law that provides for penalties if city and county officials pass gun-related regulations is at issue.

In Florida, the legislature is the sole arbiter of firearms regulations pursuant to Florida Statute 790.33 (1), which states: 

PREEMPTION.—Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.

Therefore, cities and counties are not permitted to pass stricter gun regulations than the state’s firearms laws. Moreover, the 2011 law prevented officials from violating this law by imposing penalties for such violations, including fines and removal from office, and awarding damages and attorney fees to individuals/organizations who successfully sued for such knowing and willful violations.

Proponents of the law argue that the penalties serve to protect the Second Amendment and help fight against government efforts to regulate the sale, possession, and use of firearms and ammunition.

Opponents of the 2011 law argue that the penalties are unconstitutional because they violate the privileges and immunities afforded to local and government officials. They assert that the penalties serve to “chill legitimate exercises of local legislative authority.”

In other words, the penalties prevent officials from exercising their official duties and responsibilities. They also assert that the law violates the constitutional separation of powers because it allows judges to delve “into the motives of local elected officials,” which they claim is improper.

Opponents of the law also assert that their goal is to enact local firearm safety measures that are not preempted. Such measures include “mandating reports of failed background checks, mandating documentation of compliance with mandatory waiting periods and criminal history background checks, prohibiting sales of large-capacity detachable magazines, and restricting firearm possession at government-owned-or-operated facilities and locations.”

The local governments (opponents) prevailed in the trial court. However, the First District Court of Appeal reversed. Specifically, the appellate court rejected the arguments asserting legal immunity.

In an April 2021 opinion, Judge Susan Kelsey, joined by Judges Stephanie Ray and Brad Thomas, wrote:

“The Florida Legislature has the authority to abrogate legislative immunity. It has done so here, because state preemption in this field necessarily and directly deprives local governments and agencies, and their officials, of any authority or discretion to contravene, exceed, or evade the Florida Legislature’s regulation of the entire field of firearms and ammunition. In this field, the Legislature has withdrawn all legislative authority from local governments and agencies to make policy decisions. No immunity can exist for local or agency enactment of provisions in violation of state preemption and thus beyond the scope of state-delegated authority.”

The Florida Supreme Court will now decide this important issue. Clearly, the Supreme Court’s decision could have far-reaching implications in the Sunshine State. For example, if, notwithstanding the state’s preemption in this arena, local government officials are permitted to enact stricter ordinances than the state’s firearms laws without the risk of penalties, such officials could seriously undermine and erode the rights protected by the Second Amendment.

In her previously filed brief asking the Supreme Court not to consider the case, Republican Florida Attorney General Ashley Moody, who represents the state, referenced the appellate court’s decision. She noted that if the opponents’ prevailed in this case, the state’s “political subdivisions would have the power to frustrate the ability of the Legislature to set policies for the state.”

Democrats are seeking to systematically dismantle and erode the Second Amendment. In this case, an adverse ruling against the State of Florida could presumably make that goal easier in the Sunshine State.

Floridians who cherish the Second Amendment should pay attention to this important case.

Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, The Dave Weinbaum Show, and Real America’s Voice. 

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