There is tension between these legal doctrines among all of the states in the Nation. In fact, Home Rule is an ancient legal doctrine that created great struggles with former holdings under the British Empire. The Empire wanted to impose its will remotely, but the holdings believed they were unique and should be able to determine affairs unique to it.
As it relates to firearms law, a vast number of states have vacillated between the balance to strike between Home Rule and Preemption. The majority of States have adopted state-based preemption. This means that only the State can make civil or criminal laws regulating firearms.
However, where there is state-based preemption, there are still four (4) areas where law-abiding citizens may run afoul of the law in transportation, carry, and possession of firearms. The first are local ordinances that may be adopted; these are outside the State criminal or civil laws and usually involve a fine for violation. Typically, (valid) local ordinances focus on local government property, discharge, or noise pollution.
Second, and closely related, local government may be authorized to adopt broader restrictions. These occur by exceptions to state preemption statutes. For example, in many states that preempt local government regulations of firearms, the preemption statute may provide (and allow) exceptions. Some of these exceptions include regulation of hunting, certain property owned or leased by local government, discharge, and the like.
Third, in states that have preemption statutes, it is sometimes the case that there is some ambiguity or area not specifically stated to be preempted. In this case, local governments can, and sometimes do, adopt ordinances in these areas, seizing upon “holes” in the preemption statues.
Fourth, in a smaller number of cases, local government disagrees with the state’s preemption and adopts ordinances beyond what it is allowed to do so. This is because they find their right of Home Rule impeded upon by the State. These situations are problematic and are usually only resolved by a lawsuit brought against the local entity.
This frames Home Rule versus state-based preemption. All who endeavor to fully comply with all state criminal and civil law and local ordinances should understand this potential conflict, research it, and follow the laws or do their best to do so.
This may be a high-risk matter in locales that have strong anti-gun positions. In this case, a citizen should weigh the ability to ascertain the parameters of lawful carry against the need to do so. Caution and prudence are the order of the day.
Dixon & Moseley, P.C. attorneys are available to consult with individuals, the industry, and professionals about issues arising under Home Rule and the powers reserved unto the state.
What is the Castle Doctrine? How is it applied in states that have adopted this in their law of self-defense for the exercise of deadly force?
The Castle Doctrine is an ancient legal concept or maxim. It dates from Roman times and its law. The concept is fairly straightforward. The castle, sometime ringed by a wall or mote, and/or its adjacent fields, stock, and storehouses could be (had to be) defended by force from all intruders and other attacks.
A castle and its environs were essentially an independent city and place of last resort for the nearby and countryside inhabitants. Raid and taking it by invaders was little different from stealing its livestock or crops and stores. If the castle fell or was significantly impaired by fire or plunder, that community died off or was taken as booty.
For this reason, deadly force was the mechanism to protect it, and this was tantamount to maintaining life. In states that adopted the Castle Doctrine, there are two (2) key distinctions a citizen must realize.
First, the concept is somewhat incongruous with the modern home and community. Second, most every state that has adopted this law has a qualifier that the exercise of deadly force must be objectively reasonable.
What is most critical with Castle Doctrine states is they have signaled a preferred legal policy; that a place a person lives in has special qualities and should be given leeway in its defense. Nevertheless, an exercise of deadly force may be perceived differently by law enforcement, a judge, or jury and should be avoided in the absence of any other reasonable option.
And even if the exercise of deadly force does not involve a criminal charge, it is probable a civil suit for injury or wrongful death will result. This is an expensive process, and like the emotional dimension of exercising deadly force, will likely leave an indelible print on the rest of one’s life.
Always remember there are no do-over’s. Life is sacred.
At Dixon & Moseley, P.C. we routinely handle civil and criminal dimensions in cases of self-defense.