By Michael Moline, Florida Phoenix
That law gives the Florida Legislature exclusive control over gun regulations, but some local officials want the power to cater such regulations to local conditions.
Questioning lawyer Edwards Guedes, who represents the local officials, during oral arguments, Chief Justice Charles Canady suggested the Florida Constitution allows local governments freedom to operate “except as otherwise provided by law.”
“Our cases are very clear about the superiority of legislative power in this arena. Am I wrong about that?”
No, Guedes replied. But the law in question expressly grants local governments authority to restrict weapons sales in some areas — zoning for gun shops, for example, as long as restrictions aren’t intended to totally block sales.
“And then it says, ‘Well, if you do so — and by the way, you didn’t do it right, elected official, we’re going to punish you, we’re going to punish you with a fine that targets you individually, that takes away your ability to have your defense paid for by the local government, that exposes you and essentially says don’t you dare vote,” Guedes said.
The proper response to a preempted ordinance, he continued, is an action to invalidate that ordinance.
“This is a legislative fire hose to put out a birthday candle,” Guedes said of the state preemption law.
Justice Alan Lawson asked whether the Legislature wasn’t within its authority to set policy in this way.
Guedes replied that the Florida Constitution, in addressing local government powers, essentially confers legislative immunity on local officials. It would take a constitutional amendment to undo that authority, he argued.
“That constitutional structure is beyond the power of the Legislature to change through a statute,” he said.
‘Narrower question’
Justice John Couriel interjected: “Isn’t the narrower question posed by this case the passage of legislation in a field that the Legislature has purported expressly to occupy?”
Guedes argued that the law puts the courts in the improper position of evaluating local officials’ motivations in passing any gun ordinances, which legislative immunity is supposed to protect.
Chief Deputy Solicitor General Daniel Bell, arguing for the state, said that’s a routine matter of statutory interpretation. “This is the stuff of quintessential judicial decision-making,” he said.
Bell conceded that local officials normally enjoy legislative immunity but added: “It can be taken away by a higher power; here, the state Legislature.”
The Florida Constitution sets a hierarchy for government, Bell continued.
“Local officials have only those powers that are not inconsistent with general law — meaning, they’re subject to the plenary control of the Legislature. And, with that hierarchy established, there’s no reason the Legislature wouldn’t be able to provide penalties for its statute just like any other statute.”
1987 law
The case involves a 1987 state law reserving to the Legislature all authority to regulate firearms. The statute threatens personal liability of up to $5,000 for officials and the local government for up to $100,000 if the violation was “knowing and willful.” Additionally, the governor could remove violators from office.
A trial judge sided with the local governments and officials challenging the law, but the First District Court of Appeal reversed that decision. That brought the case before the Supreme Court. Meanwhile, Commissioner of Agriculture and Consumer Services Nikki Fried, whose office initially was a named defendant, switched sides to join the challenge to the law.
The arguments transpired amid heightened concern over gun violence following mass murders at a Buffalo, N.Y., grocery store, a Texas elementary school, and elsewhere around the country.
On Wednesday night, the U.S. House passed legislation raising the age of purchasing semiautomatic rifles from 18 to 21; creating new requirements for storing guns in a home with children; preventing gun trafficking; requiring all firearms to be traceable; and closing the loophole on bump stocks, devices that increase the rate of fire of semiautomatic weapons, among other things.
The legislation’s chances in the U.S. Senate were uncertain, however.
Florida legislative Democrats are trying to gather support for a special session on guns but do not plan to seek a ban on assault-type weapons.
So far in the polling for a special session, only Democrats have said yes.
Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.
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