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States Use Preemption Power to Control Municipalities When It Comes to Restricting “Bump Stocks”

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The battle over gun control legislation has resulted in a civics lesson for many residents of cities that have sought to impose tighter gun controls since the deadly shootings in Las Vegas and at Schools in Florida and Texas. Cities and municipalities across the country have attempted to restrict ownership of, or outlaw completely, certain types of gun accessories, specifically, accessories known as “bump stocks.”

Bump stocks have been part of the country’s consciousness since a gunman in Las Vegas used a bump stock to turn his semi-automatic AR-15 into a fully-automatic weapon of mass destruction. Bump stocks are accessories that, when added to a semi-automatic weapon, leverage the recoil resulting from discharging a round into pressure that is then applied to the trigger. This allows the shooter to discharge multiple rounds without needing to squeeze the trigger each time. The bump stock does that work for the shooter.

Following the mass shooting in Las Vegas, Congress struggled to enact restrictions on bump stocks, even though public support for banning those accessories was massive. State legislatures were equally unresponsive to public pressure. With restrictions failing at that level, cities and municipalities took up the banner and began instituting their own bans on these items. However, many state legislatures have responded to these local bans by preempting a city’s ability to make such laws by making their own, in favor of bump stocks.

“Simply put, Preemption is generally when federal law trumps state law and state law trumps local municipal law,” said Cayce criminal lawyer Dayne Phillips with Price Benowitz, LLP. However, each law-making entity is allowed to make laws in areas where the other has not.

The most recent example of this is in Columbia, S.C. The city council in Columbia, after seeing no activity from the South Carolina legislature regarding bump stocks, passed a law banning the possession of bump stocks within city limits. As the law did not impact any firearms or firearm components – the two items the state legislature addressed – but rather bump stocks, which it classified as an “accessory”, the local legislation did not purport to act in an area “preempted” by the state, and therefore was valid.

The South Carolina legislature, which is Republican-controlled and firearms-friendly, passed a law that changed the language of the existing state statute regarding firearms to include “accessories” and not just components. By doing this, the state legislature had preempted the city’s ability to make laws in this area, which rendered the Columbia law invalid and unenforceable. It is always possible that the US Congress could legislate that bump stocks are illegal. If that step is taken in the future, then South Carolina’s law would be preempted and rendered invalid.

What does this mean for owners of bump stocks? In South Carolina, bump stocks are legal, and no city or municipality can pass legislation rendering them illegal. However, if the federal government takes steps to render them illegal, individuals will need to be ready to dispose of them properly to avoid criminal prosecution.