COUNTIES ‑- CITIES AND TOWNS ‑- FIREARMS ‑- POLICE POWER ‑- REGULATION OR PROHIBITION OF HANDGUNS OR OTHER FIREARMS BY COUNTUES, CITIES OR TOWNS
(1) A county, city or town may not, in the exercise of its police power, enact a general prohibition against the sale or possession of handguns, at any time or place, within the limits of its territorial jurisdiction because such an ordinance would have the effect of prohibiting conduct which state law, instead, sanctions and regulates.
(2) A county, city or town may not require the presentation of a concealed weapons permit as a condition to the sale of handgun ammunition because of an express statutory preemption by the state, in RCW 70.74.201, of the regulation, in general, of small arms ammunition.
(3) A county, city or town police power ordinance prohibiting the possession of firearms, including handguns, on public or private school grounds or college campuses within its territorial jurisdiction would be valid because such an ordinance would not be in conflict with state law under the applicable, judicially enunciated, test.
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November 3, 1982
St. Sen., 32nd District
4801 Fremont Avenue North
Seattle, Washington 98103
Cite as: AGO 1982 No. 14
By letter previously acknowledged you requested our opinion on several questions relating to the ability of a county, city or town to regulate the sale or possession of firearms. Specifically, you asked:
1. May a municipality or county prohibit the sale or possession of a handgun within its jurisdiction?
2. May a municipality or county require the presentation of a
con‑ cealed weapons permit as a condition to the sale of handgun ammunition?
[Orig. Op. Page 2]
3. May a municipality or county prohibit the possession of a fire‑arm on the grounds of elementary, secondary and post‑secondary campuses (public and private) located within their jurisdiction?
We answer your first and second questions in the negative and your third question in the affirmative for the reasons set forth in our analysis.
We first should note that in posing your questions you have not identified any particular county or city ordinance, existing or proposed, as the basis for those questions. therefore, by the same token, our response should not be viewed as a commentary on the validity of any such specific, locally enacted, gun control legislation.
Another preliminary observation which we should make before proceeding to your questions relates to the abstract constitutionality of either state or local gun control laws. Both the United States Constitution and our own Washington State Constitution contain provisions which recognize (but do not themselves grant) a right to bear arms. Specifically, the Second Amendment to the United States Constitution reads as follows:
"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
And likewise, Article I, § 24 of our State Constitution says that:
"The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."
Neither of these provisions, however, stands as a barrier to the reasonable regulation of firearms by a state or municipality in the exercise of its constitutional authority (commonly referred to as the police power) to legislate in furtherance of the public peace, health, safety and welfare. In fact, the Second Amendment has been held by the United States Supreme Court simply to be [Orig. Op. Page 3] inapplicable, at all, to state or local governmental (as distinguished from Congressional) regulatory action. See, Presser v. Illinois, 116 U.S. 252 (1886) which, although decided more than a century ago, still stands. And, in the case of Article I, § 24, the right to bear arms which is recognized by that provision has consistently been held by the Washington Supreme Court to be subject to reasonable regulation by the state (or, by implication, by a municipality) in the exercise of its police power. See, e.g., State v. Krantz, 24 Wn.2d 350, 164 P.2d 453 (1945) and cases cited therein.
We turn, next, to the constitutional basis for an exercise of the police power by a county or city in this state as set forth in Article XI, § 11 of the Washington Constitution which reads as follows:
"Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." (Emphasis supplied)
In addition, with this underscored, qualifying language of Article XI, § 11 in mind, we should also make passing note of § 14, chapter 124, Laws of 1961 which contains the following uncodified amendment to § 21 of chapter 172, Laws of 1935‑‑by which the Uniform Short Firearms Act was first adopted in this state:
"All laws or parts of lawsof the state of Washington, its subdivisions and municipalities inconsistent herewith are hereby preempted and repealed." (Amendatory language underscored)
As we read it, however, this provision was only meant to deal with those municipal ordinances which (in 1961) were already then in effect. Cf., Seattle Sporting Goods Inc. v. the City of Seattle, King County Cause No. 573042 in which the Court (in a decision which was not appealed) nevertheless upheld a subsequently adopted Seattle City Ordinance ". . . requiring purchasers of firearms, other than licensed dealers, to secure a permit from the chief of police; . . ." For thereafter, in 1963, the legislature‑‑quite possibly in reaction to the Seattle Sporting Goods case‑‑acted once again by adding the following new subsection, of obvious future applicability as well, to RCW 9.41.110:
"(7) Every city, town and political subdivision of this state is prohibited from requiring the purchaser to [Orig. Op. Page 4] secure a permit to purchase or from requiring the dealer to secure an individual permit for each sale."1/
Before commenting further on this last quoted provision and its bearing on such local governmental action as you here have in mind, however, let us return to Article XI, § 11, supra, and identify once again, as we have in numerous previous opinions, the applicable test of conflict or inconsistency. As explained by our State Supreme Court in the oft-cited case of Bellingham v. Schampera, 57 Wn.2d 106, 356 P.2d 292 (1960), in the absence of an express statutory exemption the ultimate question to be asked in the case of any local ordinance involving an exercise of the police power is whether the ordinance (a) permits or licenses that which some state law forbids or (b) prohibits that which a state law permits. And therefore, it is basically that test which we will next proceed to apply in responding to your several questions, the first of which, here repeated for ease of reference, asks:
"May a municipality or county prohibit the sale or possession of a handgun within its jurisdiction?"
We initially note that in posing this inquiry you have used the term "handgun"‑-as you also have in question (2), below‑-whereas your third question refers to any form of firearm. We will comment, further, on the significance of that distinction when we reach question (3). At this point, however, let us state for the record our assumption that, for purposes of this opinion, you mean by the word "handgun" to refer to a "short firearm" or "pistol" as those terms are defined in RCW 9.41.010; i.e.,
". . . any firearm with a barrel less than twelve inches in length."
Your question, as above stated, appears to contemplate a total, unqualified, prohibition against the sale or possession of a handgun within the territorial jurisdiction of the particular county or city involved. If that is so, however, we must advise you that such a prohibition would clearly be in conflict with those [[Orig. Op. Page 5]] provisions of the Uniform Short Firearms Act (chapter 9.41 RCW) which expressly permit a pistol, or short firearm, to be carried by certain, specifically identified classes of individuals. We have reference to RCW 9.41.060 which reads, in material part, as follows:
"The provisions of RCW 9.41.050 shall not apply to marshals, sheriffs, prison or jail wardens or their deputies, policemen or other law enforcement officers, or to members of the army, navy or marine corps of the United States or of the national guard or organized reserves when on duty, or to regularly enrolled members of any organization duly authorized to purchase or receive such weapons from the United States or from this state, or to regularly enrolled members of clubs organized for the purpose of target shooting or modern and antique firearm collecting or to individual hunters: . . ."
Moreover, the prohibition contained in RCW 9.41.050, to which this last quoted provision represents an exception, is in itself worded only in qualified terms. As amended by § 3, chapter 47, Laws of 1982, 1st Ex. Sess., that section of the Act now reads as follows:
"(1) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed weapon.
"(2) A person who is in possession of an unloaded pistol shall not leave the unloaded pistol in a vehicle unless the unloaded pistol is locked within the vehicle and concealed from view from outside the vehicle.
"(3) A person shall not carry or place a loaded pistol in any vehicleunless the person has a license to carry a concealed weapon and: (a) The pistol is on the licensee's person, (b) the licensee is within the vehicle at all times that the pistol is there, or (c) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle." (Emphasis supplied)
[[Orig. Op. Page 6]]
And see also, RCW 9.41.100, which is similarly qualified. That statute, relating to the sale of pistols or short firearms, reads as follows:
"No retail dealer shall sell or otherwise transfer, or expose for sale or transfer, or have in his possession with intent to sell, or otherwise transfer, any pistolwithout being licensed as hereinafter provided." (Emphasis supplied)
This brings us, next, to the licensing provisions of the state law. There are, basically, two separate licensing sections to be considered. First, RCW 9.41.070 operates in conjunction with RCW 9.41.050, supra, and establishes a procedure for obtaining a license to possess, or carry, ". . . a pistol concealed on [the licensee's] person within this state . . ." And second, RCW 9.41.110 spells out a licensing procedure for dealers which operates in conjunction with RCW 9.41.100, supra. The first of these two statutes, RCW 9.41.070, provides in material part that:
"The judge of a court of record, the chief of police of a municipality, or the sheriff of a county, shall within thirty days after the filing of an application of any person issue a license to such person to carry a pistol concealed on his person within this state for two years from date of issue, for the purposes of protection or while engaged in business, sport or while traveling. Such citizen's constitutional right to bear arms shall not be denied to him, unless he is ineligible to own a pistol under the provisions of RCW 9.41.040 as now or hereafter amended or there exists a record of his prior court conviction of a crime of violence or of drug addiction or of habitual drunkenness or of confinement to a mental institution: . . ."
And the second, RCW 9.41.110, reads in material part as follows:
"The duly constituted licensing authorities of any city, town, or political subdivision of this state shall grant licenses in forms prescribed by the director of licensing effective for not more than one year from the date of issue permitting the licensee to sell pistols within this state subject to the following conditions, for breach of any of which the license shall be forfeited and the licensee subject to punishment as provided in [[Orig. Op. Page 7]] RCW 9.41.010 through 9.41.160.
"(1) The business shall be carried on only in the building designated in the license.
"(2) The license or a copy thereof, certified by the issuing authority, shall be displayed on the premises where it can easily be read.
"(3) No pistol shall be sold (a) in violation of any provisions of RCW 9.41.010 through 9.41.160, nor (b) shall a pistol be sold under any circumstances unless the purchaser is personally known to the seller or shall present clear evidence of his identity.
". . .
"(7) Except as provided in RCW 9.41.090 as now or hereinafter amended, every city, town and political subdivision of this state is prohibited from requiring the purchaser to secure a permit to purchase or from requiring the dealer to secure an individual permit for each sale.
". . ."
At this point, it will be noted, we are faced once again with the 1963 legislative amendment which added the prohibition set forth in subsection (7) of this last quoted statute. Because of that provision, although our ultimate answer will be the same on counts, we must now break your question down into two parts‑-sale and possession. It seems to us that the manifest intent of the 1963 legislature in enacting that provision was to preclude local governmental bodies from establishing further barriers to the sale of handguns by state licensed dealers‑-over and above these safeguards contained in the state law itself.2/ On that basis, therefore, we must conclude that any attempt by a county or municipality to prohibit, unqualifiedly, the sale of a handgun by even a state licensed dealer in accordance with the state law would be legally ineffective under the above stated,Bellingham v. Schampera test.
[[Orig. Op. Page 8]]
But what, then, of the question of possession? Here, as we view it, the issue becomes that of the scope of a state concealed weapons permit issued under RCW 9.41.070, supra. And that, notably, is an issue which we have already addressed in an earlier opinion. We have reference to our letter opinion of May 4, 1979 to then State Representative Eric Rohrbach (copy enclosed) in which we answered, in the negative, the following question:
"Does state law preclude a local government entity from enacting a valid ordinance or a resolution which provides that possession of a firearm on the premises of a drinking establishment constitutes a crime."
State law, we concluded, does not preclude such local governmental action because the subject statutes (RCW 9.41.050 and 9.41.070, supra), read (in our view) together,
". . . simply say that it is unlawful for a person to be carrying any concealed weapon, except in his place of abode or fixed place of business,without a license. They do not, however, purport to say that the issuance of such a license gives rise toan unqualified right to be in possession of such a weapon atany time or any place within the state‑-local police power regulations adopted pursuant to Article XI, § 11 of the state constitution to the contrary notwithstanding. And, as also has been stated by our state supreme court on various occasions with regard to such local ordinances, '. . . a statute will not be construed as taking away the power of a municipality to legislature unless this intent is clearly and expressly stated.' State ex rel. Schillberg v. Everett Dist. Jus. Ct., No. 45673 (May 3, 1979), citingNelson v. Seattle, 64 Wn.2d 862, 359 P.2d 82 (1964) andSeattle v. Wright, 72 Wn.2d 556, 433 P.2d 906 (1967)." (Emphasis supplied)
This perception of the statutes thus led us, in turn, to the recognition of a distinction between the validity of (a) an absolute, unqualified, local prohibition against possession of a concealed handgun by the holder of a state concealed weapon permit‑-at any time or place‑-and (b) a limited prohibition related only to particular times or places. The former is invalid under state law but the latter is not.
[[Orig. Op. Page 9]]
Once again, however, your first question3/ contains no qualifying terminology and thus appears to involve an ordinance of the former type. Therefore, based upon the foregoing propositions, our direct answer to that question must be in the negative. A county, city or town may not, in the exercise of its police power, enact a general prohibition against the sale or possession of handguns, at any time or place, within the limits of its territorial jurisdiction because such an ordinance would have the effect of prohibiting conduct which state law, instead, sanctions and regulates. Accord,Bellingham v. Schampera, supra.
By your second question, here repeated for ease of reference, you have asked:
May a municipality or county require the presentation of a concealed weapons permit as a condition to the sale of handgun ammunition?
There is nothing in chapter 9.41 RCW, with which we have so far been dealing, which purports to license, regulate or otherwise cover the subject of handgunammunition‑-as distinguished from the weapons themselves. Such ammunition is, however, extensively regulated by chapter 70.74 RCW, the Washington State Explosives Act‑-wherein it is referred to as "small arms" ammunition. Moreover, we note that RCW 70.74.201, which codifies § 6, chapter 137, Laws of 1969, 1st Ex. Sess. as amended by § 5, chapter 22, Laws of 1970, 1st Ex. Sess., now reads as follows:
"This chapter shall not affect, modify or limit the power of a city, municipality or county in this state to make an ordinance that is more stringent than this chapter which is applicable within their respective corporate limits or boundaries: PROVIDED,That the state shall be deemed to have preempted the field of regulation of small arms ammunition and handloader components." (Emphasis supplied)
The underscored proviso was added by the above‑cited 1970 amendment4/ and would appear to us to require a negative answer to [[Orig. Op. Page 10]] your second question on the basis of an express legislative preemption of the subject matter; i.e., the regulation, in general, of small arms ammunition.
Finally, you have asked:
May a municipality or county prohibit the possession of a firearm on grounds of elementary, secondary and post-secondary campuses (public and private) located within their jurisdiction?
Before addressing this question, however, we would call to your attention the legislature's recent enactment of a similar, although less encompassing (in that it applies only to students) provision which is now in effect statewide. We have reference to § 4, chapter 47, Laws of 1982, 1st Ex. Sess. by which the legislature added the following new section to chapter 9.41 RCW:
"(1) It is unlawful for an elementary or secondary school student under the age of twenty-one knowingly to carry onto public or private elementary or secondary school premises:
"(a) Any firearm; or
"(b) Any dangerous weapon as defined in RCW 9.41.250; or
"(c) Any device commonly known as 'nun-chu-ka sticks' consisting of two or more lengths of wood, metal, plastic, or similar substance connected with wire, rope, or other means; or
[[Orig. Op. Page 11]]
"(d) Any device, commonly known as 'throwing stars', which are multi-pointed, metal objects designed to embed upon impact from any aspect.
"(2) Any such student violating subsection (1) of this section is guilty of a gross misdemeanor.
"(3) Subsection (1) of this section does not apply to:
"(a) Any student of a private military academy; or
"(b) Any student engaged in military activities, sponsored by the federal or state governments while engaged in official duties; or
"(c) Any student who is attending a convention or firearms safety course authorized by school authorities in which the firearms of collectors or instructors are handled or displayed; or
"(d) Any student who possesses nun-chu-ka sticks, throwing stars, or other dangerous weapons to be used in martial arts classes conducted on the school premises."
Thus, presumably, the primary objective of anything further which might be enacted on this subject at the local (county or city) level would be to reach, as well, the on-campus possession of firearms by other persons.5/ And, on that assumption, we turn now to the question as you have asked it.
We first note, once more, your use of the term "firearm" in this question, as opposed to the term "handgun" in questions (1) and (2), above. To the extent that this is a broader term, encompassing all types of guns including, e.g., hunting rifles and the like, our research reveals nothing in state law which purports to license, or otherwise affirmatively permit, the possession or use of those larger firearms which do not fall within the definition of "short firearm" or "pistol" as set forth in RCW 9.41.010,6/ Therefore, it readily follows that a county or [[Orig. Op. Page 12]] city ordinance regulating those larger firearms would, generally speaking, be valid from the standpoint of the absence of any conflicting state law provision.7/
Conversely, because of the existence of chapter 9.41 RCW we must turn to, and rely on, a different line of reasoning in responding to your third question as it relates to the authority of a county or city to pass an ordinance prohibiting the possession of a handgun (i.e., pistol, or short firearm) on public or private elementary, secondary or post-secondary school campus which are located within its jurisdiction. Here, in essence, the rationale for our response is basically much the same as was applied in our above‑noted 1979 opinion to Representative Rohrbach, regarding the possession of handguns in taverns or bars‑-although directed instead, in this instance, to school grounds. In our opinion, once again, the applicable provisions of chapter 9.41 RCW (read together) do not mean, or purport to say, that the issuance of a concealed weapons permit grants to its holder an unqualified right to be in possession of such a weapon at any time or any place within the state‑-any local police power regulations adopted pursuant to Article XI, § 11 of the constitution to the contrary notwithstanding.
It is our opinion, therefore, that a county or city ordinance prohibiting the possession of firearms, including handguns, on public or private school grounds or college campuses within its territorial jurisdiction would be valid because such an ordinance (unlike those covered by your first two questions) wouldnot be in conflict with state law under the applicable, Bellingham v. Schampera, test as above described.
[[Orig. Op. Page 13]]
This completes our consideration of your questions. It is hoped that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERY
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Sec. 1, chapter 163, Laws of 1963. In addition, we should also make note of the fact that it is chapter 9.41 RCW which, in general, codifies the provisions of the Uniform Short Firearms Act of 1935, as amended.
2/See, e.g., RCW 9.41.090.
3/As contrasted with your third question, below.
4/See E.H.B. 293.
5/Cf., House Bill 898 which was considered, but not enacted, during the same 1982 session.
6/There are, on the other hand, several statutes which now prohibit, or restrict, the possession or use of firearms, generally, by particular classes of persons and/or in certain locations. See,e.g., RCW 9.41.240, RCW 70.108.150, RCW 77.16.250-77.16.290 and, of course, the newly enacted provisions of § 4, chapter 47, Laws of 1982, 1st Ex. Sess., supra.
7/Note also, however, our letter opinion of August 5, 1980 to the Mason County prosecuting attorney (a copy of which is also enclosed) in which we considered the authority of a county or city, in the exercise of its police power, to restrict or prohibit the hunting of game in certain areas; namely, those areas covered by state game commission regulations.