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Why Is State Preemption Of Firearms Law Controversial Under Indiana Senate Bill 292?

This question is one that has played itself time and again through US history and in every state.  The legal concept of preemption may apply to any matter. In basic form, it asks the question of who should decide a matter — the State or the local government.

Many years ago, Indiana law fundamentally changed on how this was viewed. Until this, the only power a local branch of government possessed to regulate its affairs was what was specified by the Legislature in a statute. In other words, if a statute did not allow a local government to regulate firearms in the building that it owned or leased, it could not do so.

This changed when the Legislature adopted Home Rule. Under Home Rule, a set of statutes was passed. The effect they had was to shift authority back to local government. Home Rule statues did so by directing that any power not specifically kept by the State was capable of regulation by local government.

The biggest power the Legislature kept was the authority to adopt criminal laws and civil causes of action. Local government then adopted thousands of additional ordinances regulating all types of behavior it thought important to do so on a local level. Many of these ordinances addressed firearms matters.

For example, some local units of government banned certain types of firearms, and other local units limited how a handgun may be carried (such as a prohibition against open carry). After Hurricane Katrina, it was discovered that local law enforcement confiscated lawfully possessed firearms from those caught without access to emergency services.

This and the confluence of other events and trends changed the tide of Home Rule, as least as it relates to firearms. One representative event was the U.S. Supreme Court’s decision in the Heller case. The central holding in this case is that the Second Amendment right to keep and bear arms is an individual, not collective, right.

As such, the Legislature has been considering and implementing changes to Home Rule authority to regulate firearms on a local level for the last several years. Under the current law that existed before the passage of Indiana Senate Bill 292 (pre-2011), local government was permitted only to regulate firearms on property it owned or leased or within 200 feet of a school.

In addition under federal law and State law, any federal, state or local unit is prohibited from using its police to confiscate any lawfully possessed firearms or ammunition during times of disaster, or to suspend sales during such time.

Nevertheless, local ordinances exist and are in force in Indiana that are incongruous with the authority provided to local governmental units. A violation is still breaking the law. The penalty is a fine or confiscation, subject to legal action to remedy the over-reaching ordinance.

In the ensuing posts, the details of Indiana Senate Bill 292 are distilled. The most important concept to understand is that it further attempts to limit local government’s ability to pass regulations and restrictions on firearms and ammunition and the incidents thereof, such as carry. It does so by further clarifying what and where local government can regulate firearms.

Critically, the teeth of the Legislature’s pre-emption under Indiana Senate Bill 292 is it invalidates all local ordinances beyond the scope set forth in SB 292. And it creates a civil action for any person aggrieved by a local government’s enforcement of an ordinance whose limitations are beyond those authorized by the statute.

Under this, any offending branch of local government who is successfully sued for improper ordinances is subject to an attorney fee award and treble damages. This may not seem like a significant remedy, and indeed it may not be to an aggrieved party after going through the rigors of litigation. However, it is a marked departure in the law.

Precisely, Indiana follows the American rule. Under this rule, each side pays their own legal fees. No longer. This should give local governmental units great pause and ensure they scrupulously adhere to their limits on firearms regulation under Indiana Senate Bill 292. Home Rule is quite limited by such. We are all on notice (local government and individuals). Follow the law, or face the consequences.

Indiana Senate Bill 292 as signed into law by Indiana Governor Mitch DanielsDownload the Indiana Senate Bill 292 as signed into law by Indiana Governor Mitch Daniels.

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Ciyou & Dixon, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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