Tuesday, December 11, 2007

Whither Preemption?

The Unified Government’s ordinance prohibiting the carrying of firearms in local parks is facing a legal challenge. The practice is specifically prohibited by §1-10-4(3) of the Unified Government’s Code of Ordinances.

On the other hand, Georgia’s statewide preemption law is clear: O.C.G.A. §16-11-173(b)(1) explicitly states:

No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows; the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms or components of firearms; firearms dealers; or dealers in firearms components.

The Attorney General’s office issued an unofficial opinion in 1996, U96-22 (it used to be here - but apparently no longer - so try here instead), in response to an inquiry from a member of the state legislature. The opinion says, in part:

The provisions of O.C.G.A. Section 16-11-127, which prohibit the carrying of deadly weapons to or at public gatherings, while not limited in application to the enumerated places and functions in the statute, do not apply to every place in which the public may be present, but only to those places in which the public is gathered.


You have recently written my office with a query regarding the scope of O.C.G.A. Section 16-11-127. Specifically, you relate that a constituent has apparently been informed by various officials that this Code Section prohibits the possession of a handgun by an individual (even with a firearms permit issued under O.C.G.A. Section 16-11-129) in any place open to the public because, if members of the public are present, this constitutes a "gathering" of the "public" and is thus prohibited. For the following reasons, I do not believe that this construction is the appropriate one.

Code Section 16-11-127 prohibits the carrying of any deadly weapon (not just a handgun) at or to a public gathering. The Section enumerates five areas which are, by operation of law, public gatherings. Those are athletic or sporting events, churches or church functions, political rallies or functions, publicly owned or operated buildings, and establishments at which alcoholic beverages are sold for consumption on the premises. The Code Section also indicates that the definition of public gathering is not limited to these five specific areas. O.C.G.A. Section 16-11-127(b). Therefore, your inquiry turns on this question: what other places are public gatherings at which the possession of a deadly weapon is prohibited? In State v. Burns, 200 Ga. App. 16 (1991), the Court of Appeals, when faced with this very question, held that the focus should be on the "gathering" rather than on the "place." Thus, the Code Section applies when people are gathered or will gather for a particular function, but does not apply simply because a weapon is otherwise lawfully carried to a public place where people may be present.

I would assume that the defense of the local ordinance would be that a publicly owned park is analogous to a publicly owned building. It would be interesting to see if any case law supports such an interpretation; a quick search revealed no such cases. Unless a public park is considered to be the same as a public building, the Attorney General's opinion, unofficial thourgh is may have been, would seem to run counter to the local ordinance.

For what it is worth, GeorgiaCarry
has an excellent record regarding its challenges to local ordinances. Given the clarity of the state Code, that should not be surprising. I am hoping that the Unified Government will see the handwriting on the wall and not fight the court challenge to its ordinance – but I’m not betting on it.

This is not a new issue; most of this information was originally posted over at
Athens Chat more than a year ago.

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