Inside Tucson city limits, police officers have the right to compel a breathalyzer test if a person negligently fires a gun while intoxicated. There is also a $100 penalty for failing to report a lost or stolen gun to the Tucson Police Department.
These two small ordinances are apparently too much, though, for Arizona Attorney General Tom Horne, who released a formal legal opinion claiming that Tucson is in violation of state law because the Arizona legislature is “the only decision maker in the state law field of Arizona firearms regulation.”
Let’s assume for a moment that this is true — I can’t be the only one who is amazed that the state of Arizona is going to such lengths to defend drunken, negligent, rogue shooters from prosecution.
But state law only technically proscribes cities and towns from “enact[ing] any rule or ordinance that relates to firearms and is more prohibitive than or that has a penalty that is greater than any state law penalty.” These two city ordinances were written with the help of the City Attorney specifically to comply with this state law—there is no state law relating to the reporting of stolen weapons or to operating firearms under the influence. It’s impossible for a local law to be guilty of overriding a state law that doesn’t exist.
The gun rights activists proved this point themselves, if we go back to January, to the Tucson Police Department gun buyback commemorating the second anniversary of the Tucson Safeway shooting.
During the preceding weeks, the organizers were the targets of vitriolic phone calls and even death threats, but on January 8, the buyback went forward as planned, and people were invited to exchange their old firearms for a $50 Safeway card.
Following the buyback, the NRA and its allies attempted to argue that the TPD buyback was illegal. Arizona state law, they said, requires that firearms forfeited to the state be resold. However, the law in question, ARS 13-3105, actually defines “forfeiture” of a weapon as happening “[upon] the conviction of any person for a violation of any felony in this state in which a deadly weapon, dangerous instrument or explosive was used.” The law didn’t apply in this case because people were handing their guns over voluntarily.
Only then did gun rights activists switch tactics to argue the point that Tom Horne is pressing now — because cities are forbidden from creating gun laws with higher penalties than those of the same state laws, no city can pass any gun law at all. But instead of attempting to argue this expansive reading of state law in court, the Arizona legislature simply changed the law to explicitly require the resale of weapons in state possession.
If the broad notion that state law prohibits any local gun regulation were correct, then why did the legislature need to pass new regulations to prohibit Tucson’s actions?
Given the circular logic of the opinions coming out of Phoenix, Tucson City Councilman Steve Kozachik said Tucson will pay them no attention. “Tom Horne is not the end game,” he said. “Tom Horne’s opinion is just that — an opinion.”
Thank goodness for small blessings, because Tom Horne’s opinion appears to be this: a citizen can’t voluntarily hand over a weapon, but a thief can steal one without ever having his crime reported. An opinion like that could do a lot of damage.
Jaqui Oesterblad is a junior studying global studies, political science and Middle Eastern & North African studies. Follow her @joesterblad.
