Posted by David Kopel:
Preemption laws and leases of public property:
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242195382
Here's a legal question that combines some of the favorite topics at
the VC. David Nelson is the head of [1]Stonewall Shooting Sports, the
pro-gun gay rights group in Utah. At the upcoming [2]Utah Pride
Festival, Nelson wishes to carry a firearm lawfully, as Utah law
authorizes him to do. However, the festival operators (a private
organization) have a rule against carrying firearms at the festival.
The festival takes place on public property, which is leased by the
festival operators. The Salt Lake City police provide security for the
Utah Pride event, and enforce the organization's rules, including the
gun ban.
Utah's firearms preemption law states:
63-98-102. Uniform firearm laws.
(1) The individual right to keep and bear arms being a
constitutionally protected right under Article I, Section 6 of the
Utah Constitution, the Legislature finds the need to provide
uniform civil and criminal firearm laws throughout the state.
(2) Except as specifically provided by state law, a local authority
or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing,
selling, transferring, transporting, or keeping a firearm at the
individual's place of residence, property, business, or in any
vehicle lawfully in the individual's possession or lawfully under
the individual's control; or
(b) require an individual to have a permit or license to purchase,
own, possess, transport, or keep a firearm.
(3) In conjunction with Title 76, Chapter 10, Part 5, Weapons, this
section is uniformly applicable throughout this state and in all
its political subdivisions and municipalities.
(4) All authority to regulate firearms is reserved to the state
except where the Legislature specifically delegates responsibility
to local authorities or state entities.
(5) Unless specifically authorized by the Legislature by statute, a
local authority or state entity may not enact, establish, or
enforce any ordinance, regulation, rule, or policy pertaining to
firearms that in any way inhibits or restricts the possession or
use of firearms on either public or private property.
(6) As used in this section:
(a) "firearm" has the same meaning as defined in Subsection
76-10-501(9); and
(b) "local authority or state entity" includes public school
districts, public schools, and state institutions of higher
education.
(7) Nothing in this section restricts or expands private property
rights.
Utal has another preemption law. It says:
76-10-500. Uniform law.
(1) The individual right to keep and bear arms being a
constitutionally protected right, the Legislature finds the need to
provide uniform laws throughout the state. Except as specifically
provided by state law, a citizen of the United States or a lawfully
admitted alien shall not be:
(a) prohibited from owning, possessing, purchasing, selling,
transferring, transporting, or keeping any firearm at his place of
residence, property, business, or in any vehicle lawfully in his
possession or lawfully under his control; or
(b) required to have a permit or license to purchase, own, possess,
transport, or keep a firearm.
(2) This part is uniformly applicable throughout this state and in
all its political subdivisions and municipalities. All authority to
regulate firearms shall be reserved to the state except where the
Legislature specifically delegates responsibility to local
authorities or state entities. Unless specifically authorized by
the Legislature by statute, a local authority or state entity may
not enact or enforce any ordinance, regulation, or rule pertaining
to firearms.
Nelson argues, inter alia, that subsections (4) and (5) of the first
statute leave Salt Lake City without any authority to restrict the
carrying of firearms, yet Salt Lake City, by leasing public property
to a private organization which bans guns, and by using local police
to enforce that ban, is doing so.
Does Nelson have a valid legal argument? Does (7) save the Utah
Pride's ban? Answers which supply specific legal authority will
receive the highest grades.
References
1. http://www.stonewallshootingsportsutah.org/
2. http://www.utahpridecenter.org/utahpride/do-pride
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