Request By:
Sam Boyd Neely, Esq.
Neely and Brien
238 North 7th Street
Mayfield, Kentucky 42066
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions concerning the authority of a city of the third class to adopt an ordinance regulating the sale of firearms within the city, particularly pistols commonly referred to as "Saturday night specials."
You specifically ask whether the City of Mayfield may pass an ordinance regulating the sale of small firearms within the city, whether such an ordinance can require the buyer to submit an application to the merchant before the purchase is completed, whether a waiting period of 24 to 48 hours can be imposed before the transaction is completed, and whether the ordinance can require the merchant to notify the police of the proposed sale and application.
In any discussion of gun regulation it is almost inevitable that the "constitutional right to bear arms" issue will be raised. We direct your attention to 79 Am.Jur.2d, Weapons and Firearms, § 4, where the following appears:
"No absolute right to keep and bear arms was recognized at common law. Furthermore, the Second Amendment to the Constitution of the United States in declaring that the right of the people to keep and bear arms shall not be infringed means no more than this right shall not be infringed by Congress, and the guaranty of this Amendment is not carried over into the Fourteenth Amendment so as to be applicable to the states. The right to bear arms does not apply to private citizens as an individual right guaranteed by the Constitution of the United States. Accordingly, it is generally recognized that state or municipal regulation of weapons does not per se offend the right to bear arms guaranteed by the United States Constitution. . . ."
See also
United States v. Day, 476 F.2d 562, 568 (Sixth Circuit 1973), where the Court said, "There is no absolute constitutional right of an individual to possess a firearm. "
Many state constitutions include provisions securing the right to bear arms to their citizens. See Kentucky Constitution § 1. However, most jurisdictions recognize that the constitutional right to bear arms is intended to guarantee such rights to the people and to afford citizens a means for the defense of themselves and their property but the right is limited to bearing of arms in defense of a common cause rather than to be used in private brawls or affrays. 79 Am.Jur.2d, Weapons and Firearms, § 4.
Under its police power the state or a municipality not only has the power to regulate, including the power to impose license fees and taxes, but also the power to prohibit, the sale of ammunition and weapons without infringing the right to keep or bear arms. A city ordinance regulating the sale of weapons must not be unreasonable, arbitrary or discriminatory either in effect or classification. See 94 C.J.S. Weapons, § 2(d) (2)(e) and McQuillin Mun. Corp. (3rd Ed.), Vol. 7, § 24.489. There is no state statute regulating the sale of firearms in Kentucky but KRS 85.180(3) provides that the common council of a third class city may by ordinance regulate the sale of firearms. KRS 527.020 prohibits persons, other than peace officers, from carrying a concealed weapon and KRS 527.040 prohibits a convicted felon from possessing a handgun.
The Congress has enacted the Gun Control Act of 1968 (18 U.S.C.A. §§ 921-928) which provides in part that Congress does not intend to occupy such field to the exclusion of any state law on the same subject matter unless there is a direct and positive conflict between the Federal law and the state act so that the two cannot be reconciled or consistently stand together. The Congress has also declared that the receipt, possession or transportation of firearms by certain persons (for example, those convicted of a felony) is prohibited. See 18 U.S.C.A. Appendix §§ 1201-1203, "Unlawful Possession or Receipt of Firearms. " In addition, under its taxing power the Congress has enacted the National Firearms Act regulating and taxing the manufacture and transfer of certain types of firearms and establishing a National Firearms Registration and Transfer Record. See 26 U.S.C.A. § 5801 et seq.
Cities in many parts of this country have enacted gun control ordinances. In
Photos v. City of Toledo, Ohio, 250 N.E.2d 916 (1969), the validity of a municipal gun control ordinance was upheld. Persons desiring to purchase a handgun have to first apply to the chief of police for an identification card which is issued in seven to fourteen days after the application is filed. Each month a list of the sales of handguns is furnished to the police by the firearms dealers. At pages 926-927 of its opinion the Court said:
"This court can conceive of no matter more concerned with public safety, health and welfare of the citizens of the city of Toledo than that of the indiscriminate purchase and use of firearms, and the regulation thereof in any manner not preempted by the state of Ohio as is done here by a city ordinance, in the form of registration of the individual rather than the weapon, which should be subject to the police power of the city of Toledo."
The Court in Brown v. City of Chicago, Illinois, 250 N.E.2d 129 (1969), upheld the validity of a city ordinance regulating the possession of firearms and requiring their registration. In
Galvan v. Superior Court, California, 452 P.2d 930 (1969), the San Francisco gun registration ordinance, providing for the registration of all firearms within the city with certain exceptions, was held to be a valid exercise of the police power. A gun registration ordinance was also upheld in
Maryland & District of Columbia Rifle and Pistol Association, Inc. v. Washington, 442 F.2d 123 (D.C. Circuit 1971).
Thus, in our opinion, the third class city of Mayfield may enact an ordinance regulating the sale of handguns within the city. The ordinance cannot be unreasonable, arbitrary or discriminatory in effect or classification. The cases and materials discussed above have set forth several methods of gun control which courts in other jurisdictions have found to be valid exercises of the municipal police power.