CONCORD, NH- God bless the “Live Free or Die” state, New Hampshire.
For freedom and liberty-loving, Second-Amendment embracing patriots, a bill passed this past week in the New Hampshire senate will prohibit town and city officials from approving and implementing certain firearms regulations and restrictions.
It would also provide a mechanism where citizens or the governor would be able to help enforce the law, according to the New Hampshire Bulletin.
Under the measure, House Bill 307, which passed by a 14-10 vote, it would act to nullify any local laws or ordinances that seek to regulate the “purchase, sale, transfer, taxation, manufacture, repair, modification, ownership, possession, storage and transportation” of firearms—unless the local jurisdiction or entity has received permission from the legislature to do so.
Democrats were of course apoplectic about the measure’s enforcement mechanisms, which would allow a resident to sue a violating town for $10,000 in damages, and which would empower New Hampshire’s governor to remove a local official from office.
“It retains extreme punitive elements to our preemption law…to intimidate and punish local communities and school districts that establish or enforce common-sense firearms and knife regulations,” said state Sen. Becky Whitley, a Democrat.
Conversely, Republicans said the bill will force towns to act within the scope of their authority and take that authority seriously.
‘The right to bear arms is constitutionally protected in our country,” said Republican Sen. Bill Gannon. “And we cannot allow the degradation of this right unlawfully by anyone, let alone our local governments.”
Debate over the bill centered on the Second Amendment right to keep and bear arms, and the limits of local control.
In an earlier piece on the bill, and the possible impetus for the legislation, it spoke about the Musquash Conservation Area located in Londonderry, New Hampshire, located about 30 miles south-southeast of the state capital of Concord.
That area of the state is often considered to be “Boston north” because a great deal of people who work in Boston live in that area of the state. The only reason New Hampshire is considered a “swing” state in national elections is because of this area, which leans heavily liberal.
In 2014, residents in Londonderry expressed concerns to the town council over gun owners using the conservation area for target practice. Musquash is a 1,000 acre wooded area which has a number of ponds and walking trails. Town councilors decided to form a task force to study the issue.
About eight months later, the town council voted in 2015 to restrict the use of firearms to hunters with licenses issued from the state’s Fish and Game Department, and only during turkey and deer season, the Bulletin reported.
“There was quite a hubbub,” said Lisa Drabik, assistant town manager. “You know, when a couple people start complaining at a town council meeting, and then more people find out about it. Like: ‘Oh yeah, that makes me nervous too. I won’t go in there anymore because of it.’”
The law had remained in force, however a number of constitutional rights advocates who support the Second Amendment weighed in, claiming the restrictive measure should never have been passed. That led to last week’s vote.
The bill put the usual suspects at odds with each other—the National Rifle Association and Gun Owners of America on one side—town officials and gun safety groups on the other. House Bill 307 reignited the debate over how far “local control” should extend in the state.
The measure requires “uniform firearms laws in the state,” basically meaning that it requires towns to immediately remove any local ordinances or regulations on firearms.
How it works is a bit unusual, however. A resident who believes their town has passed a firearm regulation in violation, that person must write a letter to the town in question expressing their objection.
After receipt of the letter, the city or town would have 90 days to remove the regulation through their normal legislative process, with no means to object.
If 90 days passes and the municipality hasn’t removed the regulation, the complaining person can take the matter to Superior Court, where the bill “will give the person automatic standing,” the Bulletin says.
Under the bill, the court could issue a fine to the municipality for anywhere between $500 to $5,000, depending on whether the oversight was deemed “inadvertent” or was committed “purposefully,” “knowingly,” “recklessly,” or “as the result of negligence.”
In addition, if the complaining person is a resident, the court shall award them $10,000 in liquidated damages, plus attorney’s fees.
Prior to reaching the state senate, the bill passed the New Hampshire House by a vote of 191-162.
Drabik claims it is an intrusion by the state government into local affairs.
‘It could have a chilling effect,” I think,” said Drabik. “On how our local officials may act, what (itself) staff might recommend.”
The sponsor of the bill, Rep. Norman Silber said financial punishment is the primary point of the bill, arguing that towns shouldn’t be permitted to pass firearms regulations that contravene state law. He said the bill is intended to ensure towns reverse course.
“There was concern by myself and others in what I commonly referred to as the Second Amendment community—people who are ardent supporters of the Second Amendment to the U.S. Constitution—that we needed to do something to strengthen the existing preemption law,” said Silber.
Silber and other advocates argue that New Hampshire isn’t a “home rule” state,” which means towns are only permitted to pass policies which state statute expressly authorizes them to pass.
In addition, the if the legislature hasn’t explicitly delegated the authority to a town, or if it is silent on the issue, towns may not pass the measure.
In fact, New Hampshire already has a law that prevents localities from imposing firearms regulations. RSA 159:26 says that only the state has authority over firearms laws related to use, possession, sale, taxation, transportation as well as other areas. Silber says that towns such as Londonderry exceeded their authority by imposing firearms restrictions.
“The local authorities really are serving as a legislative branch when they enact these things. And so they’re just basically ignoring the basic legislative function of the General Court,” he said, in reference to the legislature.
RSA 159:26, however doesn’t mean that firearms owners can do whatever they want, since RSA 644:13 prohibits the discharge of firearms “within the compact part of a town or city,” which covers parks, playgrounds, buildings, school buildings, outdoor public gathering places and dense neighborhoods, the Bulletin says.
Anyone in violation of any of this bill can still face criminal charges. Also, towns are able to regulate businesses that sell firearms and knives via zoning laws—as long as they use the same rules for all businesses.
HB 307 is modeled after a similar law in Florida, and is designed to protect residents who are being affected by the regulations.
“If the local ordinances contravene state law, you’ve got to hire a lawyer, and you’ve got to defend yourself,” Silber said. “And even at the end of the day if you successfully get the charges against yourself thrown out, then the law is still on the books, and you have to eat your attorneys’ fees.”
The government affairs counsel at the New Hampshire Municipal Association, Cordell Johnston sees things much differently. He said the bill treads on municipality’s right to regulate firearms on their own property.
Moreover, he feels the financial component of fines is an even bigger issue.
“Town selectmen are volunteers,” he said. “…With rare exceptions, they’re not legal experts. They’re not lawyers. And they’re not intimately familiar with the limits of town authority. And so towns inadvertently pass ordinances all the time that may not be within their authority.”
Johnston’s argument appears to make no sense on a couple of fronts. First, HB 307 gives cities and towns 90 days to remove the offending measure. So if a town passes a measure that exceeds the scope of their authority, they have time to remove it.
Secondly, should town officials—even those who are “volunteers”—be passing laws and ordinances without first not ensuring they are legal? If they don’t understand the legalities of what they are doing, one might think that perhaps they should have a lawyer look over these measures to make sure they are in fact legal.
Johnston also argues that the bill’s implementation of financial damages and repercussions against towns and their elected leaders, including removal from office by the governor, is unconstitutional.
“It’s intended to be hostile to local government,” he said.
Johnston took his argument to an absurd level, suggesting the state could impose a law prohibiting towns from setting speed limits in their communities. The difference of course between that and HB 307 is that firearms are a covered constitutional right.
Drabik argues the law takes away local control.
“We view this as really an issue of local control,” she said. “We understand as a town that the regulation of firearms, in terms of sales and permitting and all that—that’s not within our purview. This, again, is just us having local control to do what’s best for our community on municipal property.”
Predictably, New Hampshire Democrats came out in opposition to the bill:
— Becky Whitley (@BeckyWhitleyNH) January 5, 2022
Those opposed to the law also have raised environmental concerns over the legislation, believing bullet casings left behind by shooters could see lead leaching into the watershed, imposing negative health issues down the road.
Silber said he understands the worries of town officials, however he said the purpose of the bill is to change town officials’ behavior.
“The alternative, of course, is for someone to openly flout the local ordinances that deal with these restrictions, get themselves charged…and take it all the way up to the state Supreme Court,” he said.
“You could use that as a precedent, perhaps in other places. But it doesn’t put the fear of God into the local officials in these other municipalities.”
The NRA-ILA praised New Hampshire lawmakers for passing the bill.
“This important piece of legislation strengthens New Hampshire’s preemption law to protect New Hampshire gun owners, ensuring law-abiding citizens do not face a confusing patchwork of firearm laws across the state.”
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