1     
FIREARM PREEMPTION AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: A. Cory Maloy

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill clarifies that the Legislature has preempted the field of firearm regulation for
10     the state.
11     Highlighted Provisions:
12          This bill:
13          ▸     creates the Firearms Preemption Enforcement Act;
14          ▸     clarifies preemption of the field of firearms regulation;
15          ▸     defines terms;
16          ▸     outlines violations of legislative preemption;
17          ▸     provides for civil action for a violation of legislative preemption;
18          ▸     outlines remedies and fines for violating legislative preemption;
19          ▸     addresses governmental immunity; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          53-5a-102, as last amended by Laws of Utah 2013, Chapter 278

28          76-10-500, as enacted by Laws of Utah 1999, Chapter 5
29          76-10-501, as last amended by Laws of Utah 2015, Chapters 212 and 406
30     ENACTS:
31          78B-6-2201, Utah Code Annotated 1953
32          78B-6-2202, Utah Code Annotated 1953
33          78B-6-2203, Utah Code Annotated 1953
34          78B-6-2204, Utah Code Annotated 1953
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 53-5a-102 is amended to read:
38          53-5a-102. Uniform firearm laws.
39          (1) In addition to the definitions in Section 76-10-501, "local authority" and "state
40     agency" mean the same as those terms are defined in Section 78B-6-2202.
41          (2) The individual right to keep and bear arms being a constitutionally protected right
42     under Article I, Section 6 of the Utah Constitution and the Second Amendment to the United
43     States Constitution, the Legislature finds the need to provide uniform civil and criminal firearm
44     laws throughout the state, and declares that the Legislature occupies the whole field of state
45     regulation of firearms and ammunition.
46          [(2)] (3) Except as specifically provided by state law, a local authority or state entity
47     may not:
48          (a) prohibit an individual from owning, possessing, purchasing, selling, transferring,
49     transporting, or keeping a firearm at the individual's place of residence, property, business, or
50     in any vehicle lawfully in the individual's possession or lawfully under the individual's control;
51     or
52          (b) require an individual to have a permit or license to purchase, own, possess,
53     transport, or keep a firearm, ammunition, or firearm accessory.
54          [(3)] (4) In conjunction with Title 76, Chapter 10, Part 5, Weapons, this section is
55     uniformly applicable throughout this state and in all [its] the state's political subdivisions [and
56     municipalities].
57          [(4)] (5) [All authority] Authority to regulate firearms is reserved to the state except
58     where the Legislature specifically delegates responsibility to a local [authorities] authority or

59     state [entities] agency.
60          [(5)] (6) Unless specifically authorized by the Legislature by statute, a local authority
61     or state [entity] agency may not enact, establish, or enforce any ordinance, regulation, rule, or
62     policy pertaining to firearms that in any way inhibits or restricts the possession, transfer, or use
63     of firearms on either public or private property.
64          [(6) As used in this section:]
65          [(a) "firearm" has the same meaning as defined in Section 76-10-501; and]
66          [(b) "local authority or state entity" includes public school districts, public schools, and
67     state institutions of higher education.]
68          (7) Nothing in this section restricts or expands private property rights.
69          Section 2. Section 76-10-500 is amended to read:
70          76-10-500. Uniform law.
71          (1) The individual right to keep and bear arms being a constitutionally protected right
72     under Article I, Section 6 of the Utah Constitution and the Second Amendment to the United
73     States Constitution, the Legislature finds the need to provide uniform civil and criminal laws
74     throughout the state, and declares that the Legislature occupies the whole field of state
75     regulation of firearms and ammunition.
76          (2) Except as specifically provided by state law, [a citizen of the United States or a
77     lawfully admitted alien shall not be] a local authority may not:
78          (a) [prohibited] prohibit an individual from owning, possessing, purchasing, selling,
79     transferring, transporting, or keeping any firearm [at his], ammunition, or firearm accessory at
80     the individual's place of residence, property, business, or in any vehicle lawfully in [his] the
81     individual's possession or lawfully under [his] the individual's control; or
82          (b) [required] require an individual to have a permit or license to purchase, own,
83     possess, transport, or keep a firearm, ammunition, or firearm accessory.
84          [(2)] (3) This part is uniformly applicable throughout this state and in all [its] the state's
85     political subdivisions [and municipalities].
86          (4) [All authority] Authority to regulate firearms [shall be] is reserved to the state
87     except where the Legislature specifically delegates responsibility to a local [authorities]
88     authority or state [entities] agency.
89          (5) Unless specifically authorized by the Legislature by statute, a local authority or

90     state [entity] agency may not enact or enforce any ordinance, regulation, [or] rule, or policy
91     pertaining to firearms that in any way inhibits or restricts the possession or use of firearms,
92     ammunition, or a firearm accessory on either public or private property.
93          (6) Nothing in this part restricts or expands private property rights.
94          Section 3. Section 76-10-501 is amended to read:
95          76-10-501. Definitions.
96          As used in this part:
97          (1) (a) "Antique firearm" means:
98          (i) any firearm, including any firearm with a matchlock, flintlock, percussion cap, or
99     similar type of ignition system, manufactured in or before 1898; or
100          (ii) a firearm that is a replica of any firearm described in this Subsection (1)(a), if the
101     replica:
102          (A) is not designed or redesigned for using rimfire or conventional centerfire fixed
103     ammunition; or
104          (B) uses rimfire or centerfire fixed ammunition which is:
105          (I) no longer manufactured in the United States; and
106          (II) is not readily available in ordinary channels of commercial trade; or
107          (iii) (A) that is a muzzle loading rifle, shotgun, or pistol; and
108          (B) is designed to use black powder, or a black powder substitute, and cannot use fixed
109     ammunition.
110          (b) "Antique firearm" does not include:
111          (i) a weapon that incorporates a firearm frame or receiver;
112          (ii) a firearm that is converted into a muzzle loading weapon; or
113          (iii) a muzzle loading weapon that can be readily converted to fire fixed ammunition by
114     replacing the:
115          (A) barrel;
116          (B) bolt;
117          (C) breechblock; or
118          (D) any combination of Subsection (1)(b)(iii)(A), (B), or (C).
119          (2) "Bureau" means the Bureau of Criminal Identification created in Section 53-10-201
120     within the Department of Public Safety.

121          (3) (a) "Concealed firearm" means a firearm that is:
122          (i) covered, hidden, or secreted in a manner that the public would not be aware of its
123     presence; and
124          (ii) readily accessible for immediate use.
125          (b) A firearm that is unloaded and securely encased is not a concealed firearm for the
126     purposes of this part.
127          (4) "Criminal history background check" means a criminal background check
128     conducted by a licensed firearms dealer on every purchaser of a handgun, except a Federal
129     Firearms Licensee, through the bureau or the local law enforcement agency where the firearms
130     dealer conducts business.
131          (5) "Curio or relic firearm" means a firearm that:
132          (a) is of special interest to a collector because of a quality that is not associated with
133     firearms intended for:
134          (i) sporting use;
135          (ii) use as an offensive weapon; or
136          (iii) use as a defensive weapon;
137          (b) (i) was manufactured at least 50 years before the current date; and
138          (ii) is not a replica of a firearm described in Subsection (5)(b)(i);
139          (c) is certified by the curator of a municipal, state, or federal museum that exhibits
140     firearms to be a curio or relic of museum interest;
141          (d) derives a substantial part of its monetary value:
142          (i) from the fact that the firearm is:
143          (A) novel;
144          (B) rare; or
145          (C) bizarre; or
146          (ii) because of the firearm's association with an historical:
147          (A) figure;
148          (B) period; or
149          (C) event; and
150          (e) has been designated as a curio or relic firearm by the director of the United States
151     Treasury Department Bureau of Alcohol, Tobacco, and Firearms under 27 C.F.R. Sec. 478.11.

152          (6) (a) "Dangerous weapon" means:
153          (i) a firearm; or
154          (ii) an object that in the manner of its use or intended use is capable of causing death or
155     serious bodily injury.
156          (b) The following factors are used in determining whether any object, other than a
157     firearm, is a dangerous weapon:
158          (i) the location and circumstances in which the object was used or possessed;
159          (ii) the primary purpose for which the object was made;
160          (iii) the character of the wound, if any, produced by the object's unlawful use;
161          (iv) the manner in which the object was unlawfully used;
162          (v) whether the manner in which the object is used or possessed constitutes a potential
163     imminent threat to public safety; and
164          (vi) the lawful purposes for which the object may be used.
165          (c) "Dangerous weapon" does not include an explosive, chemical, or incendiary device
166     as defined by Section 76-10-306.
167          (7) "Dealer" means a person who is:
168          (a) licensed under 18 U.S.C. Sec. 923; and
169          (b) engaged in the business of selling, leasing, or otherwise transferring a handgun,
170     whether the person is a retail or wholesale dealer, pawnbroker, or otherwise.
171          (8) "Enter" means intrusion of the entire body.
172          (9) "Federal Firearms Licensee" means a person who:
173          (a) holds a valid Federal Firearms License issued under 18 U.S.C. Sec. 923; and
174          (b) is engaged in the activities authorized by the specific category of license held.
175          (10) (a) "Firearm" means a pistol, revolver, shotgun, short barreled shotgun, rifle or
176     short barreled rifle, or a device that could be used as a dangerous weapon from which is
177     expelled a projectile by action of an explosive.
178          (b) As used in Sections 76-10-526 and 76-10-527, "firearm" does not include an
179     antique firearm.
180          (11) "Firearms transaction record form" means a form created by the bureau to be
181     completed by a person purchasing, selling, or transferring a handgun from a dealer in the state.
182          (12) "Fully automatic weapon" means a firearm which fires, is designed to fire, or can

183     be readily restored to fire, automatically more than one shot without manual reloading by a
184     single function of the trigger.
185          (13) (a) "Handgun" means a pistol, revolver, or other firearm of any description, loaded
186     or unloaded, from which a shot, bullet, or other missile can be discharged, the length of which,
187     not including any revolving, detachable, or magazine breech, does not exceed 12 inches.
188          (b) As used in Sections 76-10-520, 76-10-521, and 76-10-522, "handgun" and "pistol
189     or revolver" do not include an antique firearm.
190          (14) "House of worship" means a church, temple, synagogue, mosque, or other
191     building set apart primarily for the purpose of worship in which religious services are held and
192     the main body of which is kept for that use and not put to any other use inconsistent with its
193     primary purpose.
194          (15) "Local authority" means the same as that term is defined in Section 78B-6-2202.
195          [(15)] (16) "Prohibited area" means a place where it is unlawful to discharge a firearm.
196          [(16)] (17) "Readily accessible for immediate use" means that a firearm or other
197     dangerous weapon is carried on the person or within such close proximity and in such a manner
198     that it can be retrieved and used as readily as if carried on the person.
199          [(17)] (18) "Residence" means an improvement to real property used or occupied as a
200     primary or secondary residence.
201          [(18)] (19) "Securely encased" means not readily accessible for immediate use, such as
202     held in a gun rack, or in a closed case or container, whether or not locked, or in a trunk or other
203     storage area of a motor vehicle, not including a glove box or console box.
204          [(19)] (20) "Short barreled shotgun" or "short barreled rifle" means a shotgun having a
205     barrel or barrels of fewer than 18 inches in length, or in the case of a rifle, having a barrel or
206     barrels of fewer than 16 inches in length, or a dangerous weapon made from a rifle or shotgun
207     by alteration, modification, or otherwise, if the weapon as modified has an overall length of
208     fewer than 26 inches.
209          [(20)] (21) "Shotgun" means a smooth bore firearm designed to fire cartridges
210     containing pellets or a single slug.
211          [(21)] (22) "Shoulder arm" means a firearm that is designed to be fired while braced
212     against the shoulder.
213          [(22)] (23) "Slug" means a single projectile discharged from a shotgun shell.

214          [(23)] (24) "State agency" or "entity" means a department, commission, board, council,
215     agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory,
216     library, unit, bureau, panel, or other administrative unit of the state, including the Board of
217     Regents, each institution of higher education, and the institutional councils of each higher
218     education institution.
219          [(24)] (25) "Violent felony" means the same as that term is defined in Section
220     76-3-203.5.
221          Section 4. Section 78B-6-2201 is enacted to read:
222     
Part 22. Firearm Preemption Enforcement Act

223          78B-6-2201. Firearm Preemption Enforcement Act.
224          This part is known as the "Firearm Preemption Enforcement Act."
225          Section 5. Section 78B-6-2202 is enacted to read:
226          78B-6-2202. Definitions.
227          As used in this part:
228          (1) "Ammunition" means a bullet, a cartridge case, primer, propellant powder, or other
229     ammunition designed for use in any firearm, either as an individual component part or in a
230     completely assembled cartridge.
231          (2) "Firearm" means the same as that term is defined in Section 76-10-501.
232          (3) "Firearm accessory" means an item that is used in conjunction with or mounted
233     upon a firearm, firearm action, or firearm receiver, but is not essential to the basic function of a
234     firearm, including:
235          (a) a telescopic or laser sight;
236          (b) a magazine;
237          (c) a flash or sound suppressor;
238          (d) a folding or aftermarket stock or grip;
239          (e) a speed-loader;
240          (f) an ammunition carrier; and
241          (g) a light for target illumination.
242          (4) "Legislative preemption" means the preemption provided for in Sections 53-5a-102
243     and 76-10-500.
244          (5) "Local authority" means a county, city, town, metro township, local district, local

245     education agency, public school, special service district under Title 17D, Chapter 1, Special
246     Service District Act, an entity created by interlocal cooperation agreement under Title 11,
247     Chapter 13, Interlocal Cooperation Act, or any other governmental entity designated in statute
248     as a political subdivision of the state.
249          (6) "Local education agency" means a school district or charter school.
250          (7) "State agency" means the same as that term is defined in Section 76-10-501.
251          Section 6. Section 78B-6-2203 is enacted to read:
252          78B-6-2203. Violation of legislative preemption -- Exceptions.
253          (1) A local authority or state agency that violates legislative preemption by enacting or
254     causing to be enforced an ordinance, regulation, measure, directive, rule, enactment, order, or
255     policy that impinges upon the legislative preemption is liable as provided in this part.
256          (2) An ordinance, regulation, measure, directive, rule, enactment, order, or policy that
257     impinges upon legislative preemption is void.
258          (3) This part does not prohibit:
259          (a) a duly organized law enforcement agency from enacting and enforcing regulations
260     pertaining to firearms, ammunition, or firearm accessories issued to or used by a peace officer
261     in the course of the peace officer's official duties;
262          (b) a court or administrative law judge from hearing and resolving any case or
263     controversy or issuing any opinion or order on a matter consistent with state law within the
264     jurisdiction of that court or administrative law judge; or
265          (c) a rule of a correctional or mental health facility under Section 76-8-311.3.
266          Section 7. Section 78B-6-2204 is enacted to read:
267          78B-6-2204. Civil action -- Injunction -- Fines -- Penalties -- Immunity.
268          (1) If a local authority or state agency makes or causes to be enforced an ordinance,
269     regulation, measure, directive, rule, enactment, order, or policy in violation of this part, an
270     individual who is harmed, or an organization, described in Subsection (6), with a member who
271     is harmed by that action, may file suit against the local authority or state agency in any court of
272     this state having jurisdiction over the local authority or state agency.
273          (2) If the court determines that a local authority or state agency violated this part, the
274     court shall:
275          (a) order that the relevant ordinance, regulation, measure, directive, rule, enactment,

276     order, or policy is void;
277          (b) issue a permanent injunction against the local authority or state agency prohibiting
278     the local authority or state agency from enforcing the void ordinance, regulation, measure,
279     directive, rule, enactment, order, or policy;
280          (c) award to the plaintiff an amount equal to treble:
281          (i) actual damages, which includes the cost of time in bringing the civil action;
282          (ii) reasonable attorney fees and costs in accordance with the laws of this state; and
283          (iii) interest on the sums awarded pursuant to this Subsection (2) accrued at the legal
284     rate from the date on which suit is filed; and
285          (d) assess a fine of up to $500 against the local authority or state agency for each day
286     the local authority or state agency is found to have knowingly and willfully violated this part.
287          (3) (a) Amounts awarded under Subsection (2) are due 30 days from the day on which
288     the court awards the damages.
289          (b) Fines assessed under Subsection (2)(d) shall be deposited into the General Fund.
290          (4) A local authority or state agency may not claim as a defense that in enacting the
291     ordinance, regulation, measure, directive, rule, enactment, order, or policy that the local
292     authority or administrative agency is acting in good faith or upon advice of legal counsel.
293          (5) (a) Except when required by applicable law, public money may not be used to
294     defend or reimburse the unlawful conduct of an individual found to have knowingly and
295     willfully violated this part.
296          (b) To the extent permitted by the Utah Constitution, a knowing and willful violation
297     of this part by an individual acting in an official capacity for a local authority or state agency
298     enacting or causing to be enforced an ordinance, regulation, measure, directive, rule,
299     enactment, order, policy, or otherwise under color of law is cause for termination of
300     employment or contract, or removal from office in accordance with the applicable procedure
301     for termination of employment or contract, or removal from office.
302          (6) An organization registered under the laws of any state with a purpose to preserve
303     the right to keep and bear arms has standing to sue or join in any lawsuit described in this
304     section.
305          (7) Notwithstanding Title 63G, Chapter 7, Governmental Immunity Act of Utah, a state
306     agency, local authority, or individual acting in an official capacity for a state agency or local

307     authority that violates this part is not immune from suit or liability for the violation and not
308     subject to the requirements of Title 63G, Chapter 7, Governmental Immunity Act of Utah.