Photo by Howard Fischer, for the Miner.
PHOENIX – Declaring lawmakers have the final say, the Arizona Supreme Court ruled Thursday that cities, towns and counties have no right to enact their own gun regulations.
In a unanimous conclusion, the justices voided a 2005 Tucson ordinance that says when the police department obtains a gun through seizure or surrender, the agency “shall dispose of such firearm by destroying the firearm.’’ The justices said it is clear in their minds that it is trumped by multiple existing state laws to the contrary.
Thursday’s decision has implications beyond Tucson and the question of firearm regulations.
It upholds the legality of SB 1487, a 2016 law that allows individual lawmakers to direct the Attorney General’s Office to investigate claims that a local law runs afoul of state statutes. That triggers an automatic investigation that can lead to a city losing half of its state shared revenues.
Potentially more significant for the state’s 18 charter cities, the justices said their constitutional right to enact their own laws is not absolute and that the Arizona Legislature in many cases gets the last word.
Attorney General Mark Brnovich, who sued Tucson, called the ruling “a monumental victory for the state of Arizona.’’
“Whether you like it or not, it’s a huge victory for the rule of law,’’ he said. The bottom line, said Brnovich, is that the high court has made it clear that, with only narrow exceptions, if there is a conflict between state law and local ordinances, the local law has to fall.
The 2005 Tucson ordinance came under scrutiny after Rep. Mark Finchem, R-Oro Valley, used SB 1487 to complain.
Brnovich ultimately concluded the Tucson measure runs afoul of a 2000 law which explicitly prohibits local government from enacting any ordinances dealing with acquisition, licensing, registration or use of firearms. And if those statutes were not clear enough, he cited a pair of 2013 laws that bar law enforcement agencies from destroying operable seized weapons and direct that they instead be sold.
Tucson agreed to stop enforcing the ordinance but refused to rescind it. Brnovich then sued.
He contends that issues of gun regulation are a matter of statewide concern. And he argues there is no right of cities to get state aid, especially if they are flouting state statutes.
Rick Rollman, Tucson’s lead attorney, said SB 1487 amounts to illegal coercion.
He said the threat in that law of a city losing half of its state revenue sharing based on Brnovich’s conclusion of illegality forces local officials to abandon measures they adopt that they believe are in the community’s best interests. That loss for Tucson would be $55 million.
Rollman also said it’s unconstitutional to give Brnovich that kind of authority to order state aid withheld.
And he argued that Tucson and 17 other communities are charter cities with a constitutional right to set their own policies on matters of strictly local concern, He said that includes the disposal of seized weapons, no matter what the legislature says.
But Justice John Pelander, writing for the high court, rejected those contentions.
“The Legislature’s apparent objective in SB 1487 was not to usurp executive or judicial authority but rather to require and incentivize political subdivisions to comply with state law,’’ he wrote. “Likewise, the practical consequence of SB 1487 is to encourage compliance with state law, not to coerce, control, or interfere with executive powers or prerogatives.’’
Anyway, Pelander said, it’s not like the law gives Brnovich unilateral and unquestioned power to decide for himself which local laws are legal and which are not. The justice pointed out that question is ultimately decided by the courts.
That still leaves the question of how far charter cities can go in deciding what laws work best for their own residents.
Pelander acknowledged the Arizona Constitution does give city voters the power to enact their own charters and enact their own laws.
And in prior decisions, the Supreme Court has voided efforts by the Legislature to tell charter cities when they have to hold elections and how they must choose council members. The justices also have said charter cities are free to decide how to dispose of real property.
But Pelander said the constitution says city charters “shall be consistent with and subject to the state constitution and not in conflict with ... general law of the state not relating to cities.’’ And he said any argument that cities have authority to decide of how to dispose of weapons falls under the plain language of state laws.
“In no uncertain terms, the Arizona Legislature has declared that ‘firearms regulation is of statewide concern’ and has expressed its intent to preempt ‘firearms regulations in this state’ and thereby ‘limit the ability of any political subdivision of this state to regulate firearms,’ ‘’ he wrote.
Brnovich said that ends the discussion.
“What the state Supreme Court is basically saying is that if there’s a conflict with state law, unless it falls within one of those two narrow areas, state law will prevail,’’ he said.
Brnovich said he took on the Tucson ordinance not just on the question of state preemption but to protect “the Second Amendment right of law-abiding Arizonans.’’ That goes to arguments also advanced by Michael Rusing on behalf of the National Rifle Association that allowing Tucson to destroy firearms reduces the supply in both Tucson and around the state, a move he said was political.
“The only purpose of the program can be to keep as many firearms as possible out of private hands or, put differently, to deliberately suppress the number of people keeping and bearing arms within Tucson and throughout the state,’’ he wrote.
The justice sidestepped those arguments, with Pelander saying he and his colleagues saw no reason to even address that contention given that it is clear the state’s power to regulate firearms clearly overrules local ordinances.