Tuesday, August 2, 2016

Indiana’s cities blocked from passing firearm ordinances for public safety

Posted By on Tue, Aug 2, 2016 at 4:19 PM

  • simonov/wikimedia commons
By Ed Smith, President
Hoosiers Concerned About Gun Violence, (hcgv.org)

Assault weapons empower individuals who are driven by hate. An individual with a concealed carry permit in Indiana may openly carry weapons of mass destruction and high capacity magazines on our streets. To make matters worse, some of these weapons can fire M855 rounds which are legal to purchase, are armor piercing and can penetrate Kevlar vests worn by our police and other law enforcement agencies. Policing is a tough enough job without subjecting our law enforcement officers and our citizens with the increased risk posed by these weapons.

The barrier to Indianapolis/Marion County City Council ordinances with respect to firearms rests in the Indiana Preemption of Firearms Statute modified in 2011. This statute precludes a political subdivision of Indiana from establishing any ordinance that regulates the ownership, possession or carrying of firearms or ammunition. In 2009 the NRA brought a suit against Pittsburgh, PA, for adopting an ordinance requiring the reporting of a lost or stolen firearm. That suit was denied by the court on the basis that the NRA did not have standing in court to bring such a suit.

This was the motivation for the NRA to push for a revision in the preemption statutes of Indiana and other states. The revision to the statute in 2011, drafted by the NRA, added two controversial provisions. One provides the NRA standing in court to sue Indiana’s political subdivisions by adding to the definition of an affected person, (one with a right to sue), a membership organization that includes two or more individuals and is dedicated to protecting the rights of individuals who own firearms. Another provision added to the statute provides the affected person, (NRA included), if successful in the suit, with three times attorney’s fees as damages. The political subdivision receives no such damages if successful in the defense of the suit.

What has occurred is a distressing instance of special legislation which is prohibited by the Indiana Constitution, Article IV Sec. 23. In 2003, Indiana Supreme Court Justice Theodore Boehm argued against these types of special laws in his opinion in Municipal City of South Bend v. Kinsey.

Last December, the Indianapolis City-County Council voted in favor of an ordinance to require the reporting of a lost or stolen firearm within 48 hours of becoming aware of the event. The measure was vetoed by Mayor Ballard on the basis that it violated the preemption statute. Our position is that this constitutes the reporting of an event which has nothing to do with possession or ownership as the firearm is no longer in the individuals possession. Those members of the council opposed to the ordinance were concerned with the cost implications of the treble damages provision of the state preemption statute if it were successfully challenged. The City County Council should resubmit the proposed ordinance and ask the court for a declaratory judgment with respect to Article IV Sec. 23 of the Indiana Constitution.

In an effort to protect their citizens, local governments of Indiana need the freedom to do what the majority party of the state legislature clearly has no interest in doing. Nothing is likely to happen unless we, as citizens of Marion County, get involved in pushing for action on these issues at the state and local level.

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