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Legal Commentary

: The Volokh Conspiracy

Victory for firearms preemption in New York

By David Kopel

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(David Kopel)

Nassau County, on Long Island, New York, enacted an ordinance which bans handguns in non-traditional colors, such as pink. The ordinance declares such firearms to be ?deceptively colored.?

On December 28, the Appellate Division, Second Department (the intermediate court of appeals) ruled 4?0 that the Nassau ban is preempted by New York State?s handgun licensing law. While the state law, Penal Law § 400.00, is not explicitly preemptive, the Appellate Division found implicit field preemption because: 1. The licensing law is detailed, and describes what kinds of handguns may not be licensed. 2. The state statute declares that a license shall be valid in every county of the state, but Nassau County?s law prohibited licensed persons from other counties from entering Nassau County with their licensed colored handguns. ?In effect, the amended ordinance places a restriction on all licenses granted throughout the state, and deprives all licenses that were lawfully granted to owners of ?deceptively colored? firearms of their stated benefits. If each of New York?s 62 counties enacted ordinances that placed additional restrictions on licenses, as the amended ordinance effectively does, the uniformity in firearm licensing that the Legislature intended would be destroyed.?

Congratulations to longtime Nassau activist Alan Chwick for his victory in Chwick v. Mulvey.