Gun safety bills advance out of committee; one of them is illegal

The two gun-safety bills that Mayor Durkan and Council member Gonzalez announced last month passed out of committee this morning with minor amendments, and will come up before the full City Council for final approval on July 9th. But even if they pass, as is likely, one is all but guaranteed to be overturned in court.

The first bill requires that firearms be kept locked up so as to make them inaccessible to anyone other than the owner.  The second bill increases the penalties for failure to report a lost or stolen firearm if it is subsequently used illegally or in the commission of a crime.

Each bill saw one amendment in this morning’s committee deliberation. The amendment to the gun-storage bill moves the authority to issue citations from the Seattle Municipal Court to the City Attorney’s Office, allows for multiple fines if the firearm is used in a mass shooting, and modifies the reporting requirements.  The amendment to the theft/loss reporting bill also moves authority to issue citations to the City Attorney’s Office, and makes other minor technical changes.

Both bills passed unanimously out of committee.

Gonzalez thanked Moms Demand Action and the Seattle chapter of the Brady campaign for helping to drive the legislation forward. She also noted that not a single person testified against the bills, though the NRA has publicly opposed them. Council member Johnson hailed the bills as important legislation despite the lack of fanfare, and interpreted their quick and quiet path through the legislative process as a sign that people find them to be reasonable policies.

Attached to the bills is a clerk file of documents supporting the policies in the two pieces of legislation. It includes several research papers from peer-reviewed medical journals, as well as statistics from the ATF on firearm theft/loss reporting.

Assuming the bills pass and the Mayor signs them (almost a certainty), the gun-storage bill will face a strong legal challenge. State law preempts the city from passing its own gun regulations, with only a few exceptions that the bill doesn’t seem to meet. The city’s tax on guns and ammunition, passed three years ago, survived legal challenge because it is a tax, not a regulation.

This afternoon, when asked why she believes the gun-storage bill is not preempted by state law, Gonzalez said via email:

“RCW 9.41.290 specifically enumerates pre-emption categories as it relates to firearms.  Neither of the bills passed out of Committee today regulate the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, or transportation of firearms.  It is my belief, based on a reading of State law, that the State’s preemption law leaves room for local jurisdictions to enact sensible laws for the safe storage of guns.  Had the State Legislature intended to preempt storage laws it would have listed it in RCW 9.41.290; but it did not.”

There are two problems with her response. First, many would conclude that “storage” is an essential part of “possession,” which is indeed listed. Second, Gonzalez selectively quoted the text of RCW 9.41.290, which reads in full (my emphasis):

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components.

It doesn’t specifically enumerate the only areas of gun regulations that are pre-empted, as Gonzalez suggests; rather, it clearly and plainly preempts the entire field of firearms regulation, with a list of areas explicitly included. Unless the city plans to argue that the state’s preemption of gun regulation is unconstitutional or was improperly enacted, as it did with its income-tax law (and lost the case), this gun-storage law can’t possibly stand up in court.

To be clear, the issue isn’t whether the gun-storage law is sensible, or well-supported by medical research. The issue is whether the City Council has the authority to enact it — and it doesn’t.

Gonzalez and her colleagues in the City Attorney’s Office are sharp attorneys; they know this. That suggests this bill is more politics than policy, intended either as virtue-signaling to constituents, or as pressure on the state legislature to enact it statewide. But at a time when the city budget is tightening and officials are scrambling to find more money to invest in the homelessness crisis, Gonzalez and Durkan need to explain why it makes sense to commit taxpayer money to the expense of fighting a legal battle the city is destined to lose.