Dave Markowitz pointed out this section of the United States Code I had never seen before. It deals with federal regulations concerning toy, look alike, or imitation firearms, and requires the orange barrel that anyone who has ever bought an Airsoft gun in this country is familiar with. But it contains this provision at the very end:
(g) The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall—
(i) prohibit the sale or manufacture of any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or
(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B–B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.
This is worded in a confusing manner, but my read of it is that the preemption is limited to marking requirements, meaning if New York City were to require that all imitation guns be painted bright pink, federal law would preempt that, provided that New York State does not outright prohibit the sale of look-alike arms. By the same token, Philadelphia would be unable to stipulate markings for an imitation firearm because Pennsylvania does not fall under the exception.
I could be reading this wrong though. Because the way it’s worded, it seems to be that you could read it that if any state passes a law along the lines of (i) or (ii) the entire preemption would be nullified.
It’s worded weird, but it should be read along the lines of, “and by the way, you can’t ban airguns either.”
From Coalition of New Jersey Sportsmen v. Florio, 744 F.Supp. 602, 609 (D. N.J 1990):
The Congress, while attempting to reduce the commission of crimes with toy guns, has removed from the states the ability to prohibit the sale of more dangerous, high-powered air guns, some of which appear capable of inflicting serious bodily injury or death. There is no dispute that the Congress may exercise such power under the Commerce Clause however, and the wisdom or desirability of such an exercise is an issue for the Congress and not this Court.
Interesting. To me it reads as an exception that only applies unless. But they are suggesting that (i) and (ii) are actual preemption on state law. Interesting. So how does NYC and Philadelphia get away with prohibiting air guns?
Who knows. I guess it’s because it’s NY/NJ. Similarly, despite FOPA being well settled law, PANYNJ apparently have taken upon themselves to constantly harass air travelers transiting through the NY area airports, and there is a case pending before the 2nd Circuit, Revell v. Erickson, 09-2029, regarding the issue of whether PANYNJ and the copy (Erickson) are liable for violating Mr. Revell’s rights and keeping his guns and stuff for quite a while.
Pennsylvania did not harass any traveler, the Port Authority took it upon themselves to do that. Besides, we’re well aware of the case. Keep in mind that this blog has repeatedly endorsed the NRA Board member who is a key player in bringing that case, Scott Bach.
I meant PANYNJ = Port Auth. NY & NJ.
Didn’t know y’all were involved in the case.
We’re not involved in the case, we’ve just been following it, blogging it, and work with folks who are directly involved. We try to cover not only NJ when applicable, but also major news like this regularly.