Kozachik: Ruling on Tucson gun policy undermines cities' local sovereignty
Last week we received the long-anticipated ruling from the Arizona State Supreme Court on our policy of destroying guns. This was part of a self-congratulatory email sent out by the NRA in reaction to the decision:
"We applaud the Arizona Supreme Court's ruling," said Chris Cox, executive director of NRA's Institute for Legislative Action. "Firearms should not be summarily destroyed by local governments."
Quoting "he who shall not be named:" Sad. We were not "summarily" destroying guns. More to the point though, this decision had absolutely nothing to do with the Second Amendment to the U.S. Constitution. It did, however, have serious implications for other constitutional questions, each of which the court ignored.
This is the legal definition of Home Rule:
The right to local self-government including the powers to regulate for the protection of the public health, safety, morals, and welfare; to license; to tax; and to incur debt.
That is what the case was about. The decision handed down has vast implications for every jurisdiction in this state. Cities can adopt charters. We have one that voters approved over 100 years ago. Its purpose is to allow us to be as free from state interference as is possible.
A part of our charter gives us the right to take and dispose of property. We've been doing that with all sorts of property for years. One of those pieces of property is guns. The state legislature amended state statute to prevent us from destroying guns in reaction to the gun buy-back I organized in 2012. Last year an Oro Valley representative filed a complaint with the Attorney General saying our gun destruction policy is pre-empted by state law. That's the rub – state authority versus our ability to decide what to do with property that comes into our possession, guns or otherwise.
In his decision, Justice Bolick made this statement: "a charter city generally may do anything that the state does not expressly forbid."
That broad statement is what this case is about. Not guns, not the Second Amendment. It's why the League of Cities and Towns joined us in this litigation.
Bolick says if charters were to be given the respect many of us believe they should, we'd have what he calls "independent petty states within this state." That is what this court thinks of your ability to elect your own representation and to give us the authority of enacting local laws governing our local issues. The governor, legislature and court think your interest in self-governance is "petty." I disagree.
To that last point, the court says how we handle guns is of statewide concern because they are responsible for "police powers" and for guarding the Second Amendment. They feel if we destroy guns that come into our possession, it steps on their policing authority and runs counter to the Second Amendment. In their briefs they said "more guns in circulation makes us all safer." They said if the city takes guns out of circulation it raises the cost of guns (supply and demand) which is counter to the Second Amendment goal of making guns widely accessible. I cannot think of more tortured reasoning.
The statute under which this action was brought by the state is SB1487. The most critical piece of it says if a local jurisdiction is in violation of state law, we may lose all of our state shared revenues. We may lose it month by month while our "illegal" ordinance is on the books. For us, that's about $115M, or just over $10M per month. The Supreme Court of this state told us our ordinance allowing us to destroy guns – even if you bring one to us and request that we do so – is a statewide issue and is therefore pre-empted by state law. If we do not repeal that ordinance, we stand to lose our state shared revenues.
The court did not address that sanction – loss of state shared revenues. We argued that it's punitive and confiscatory. By leaving it unaddressed - by ignoring it and punting - the court let it stand.
This is the Arizona Supreme Court. We have no avenue to appeal. This is not a federal case and so we have no appeal rights to the 9th Circuit where our charter authority has been respected multiple times. It is disrespected within the State of Arizona.
We have a local ordinance through which we offer rebates to people for the installation of rainwater harvesting systems. Under SB1487, if a legislator from Show Low felt that ordinance ran counter to some existing state law and argued the state should control water policy, we'd be subject to having the ordinance deemed illegal and face losing our state shared revenues if we didn't repeal it.
We just dropped speed limits on our bike boulevards by 5 mph. If some legislator from Prescott felt managing the flow of traffic and speed limits needed to be controlled by the state and passed legislation that made our local ordinance in conflict with the new one they passed, we could similarly be in the position of losing state shared revenues if we didn't repeal our local ordinance.
Justice Bolick's reasoning is that we have the charter authority to run our own elections. Beyond that, we're expected to do what the state tells us to do. It's written into the unanimous opinion in this case.
Every city and town in this state lost its sovereignty through this decision. That means to me that every constituent I represent across this city has now seen our ability to establish local laws that reflect the values of this community placed at risk. It is reversible only if there's a change in the state legislature and they vote to rescind SB1487 and other state statutes which now tie our hands.
This case was about guns only to the extent that they are the piece of property some in the legislature have a fetish over and can't bear the thought of local governments determining disposition of them. These "civil libertarians" are telling you that even if you want your personal property to be taken out of circulation and you feel the city is the most efficient way to get that done, your right to determine what you want done with it doesn't matter if that property is a gun. They know better.