So…I don’t know how many people here have been to NH, but if you have been, there are certain parts of the state that are filled with firework stores. You’d think that given it’s perfectly legal for anyone in the state to purchase and possess fireworks, it’s also legal to use them. There you’d be wrong: about 3/4ths of NH towns forbid the use of fireworks. Pretty much every July there’s a flurry of letters to the editor in papers about how ridiculous it is and how “somebody” should do something to make it more sensible.
Thinking about this makes me wonder if states can enact laws that would supersede town ordinances. I know from government classes in 9th grade that the federal government can’t do that to states, but do towns have the same rights over their state? Or could the state government make a law (legalizing the use of fireworks or something else) that would override what the towns already have on the books?
In general local governments - towns, counties and such - only have whatever legislative powers the state government gives them, and what the state government gives them the state government can take away at any time.
The only thing that could vary this, I think, would be a provision in the state constitution explicitly conferring certain compentencies on local governments, in which case overriding local government decisions in that area would require an amendment to the state consitution. Whether the NH Constitution (or any other) says anything about this, I have no idea.
Absolutely. It’s not uncommon for someone—the billboard industry, the manufactured housing lobby, etc.—to persuade the state legislature to forbid the, ahem, confusing restrictions local governments might try to put on them.
The federal government overrules state law all the time. Per the Constitution, it’s not supposed to be able to, except in certain areas, but there’s plenty of struggle over the precise boundaries of those areas, and in any case there’s plenty of law that’s been made more-or-less within them.
The constitution makes the state “King” within its borders.
The state can not only bully municipalities, but it can destroy them at will, subject only to the statewide will of the voters.
If it decided to, New York State could kill off NYC’s local government the next day that the state legislature convened, placing the whole city under state administration.
That’s just a confusing way of putting it, though, because, by in large, the reason that a federal law would not be valid is that the State is supreme in that area. States are in fact sovereign and voluntarily gave up some freedom to a federal government.
Looking at it from the outside, what actually happens, most of the time, is that the most restrictive law wins, except for certain exceptions carved out in the Constitution. You are not going to see a federal law making fireworks explicitly legal in every state. You will possibly see a state law saying that for everything within its borders.
As above, counties and municipalities have only the powers granted to them by their state. If the state decides they don’t have the power to do something, then any local laws to the contrary cannot be enforced.
I think that may be a misleading example; I’m pretty sure that since the plaintiffs (the cities like NYC) and the defendants (let’s say Sturm, Ruger & Co) are in different states, the case is being heard in Federal court, which means that yes, the Feds explicitly have the ability to block that sort of thing, without stepping on any state toes.
If for example, NYC was somehow suing Ruger in NY state court for breaking NY laws, then that would be different, and the Feds would have no say.
Ohio’s Constitution, Article 18 section 3 is our Home Rule provision.
A Municiplaity can pass Ordinances that can basically pre-empt state law, as long as it does not conflict with the “General laws”.
For instance, a provision of state law, still on the books, states a Municpality can NOT pass any traffic law in conflict with a state traffic law.
There were challenges to this when Municipalities passed Ordinance’s making a state traffic law a higher clssification than a Minor Misdemeanor, which most are, running a red light, etc.
A Municipality can change the DEGREE of the offense, but NOT the CLASSIFICATION, iow, from Misdemeanor to Felony. The same with criminal laws.
Running a stop sign under ohio law is a Minor Misdemanor, but a Municipality can have it’s degree from a M-4 up to a M-1, the Ohio Supreme Court has ruled this is NOT a conflict with the general laws.
Your state law will determine in what areas a Municipality can pre-empt state laws.
If a law legalizes fireworks, the only way a sub division can pre-empt it, is if the legislature permits it.
Oh while I remember, a case called Mendenhall v. Akron, permits a municipality to have a red light camera vioaltion as an INFRACTION, which is below a Minor Misdemeanor, so in that respect, the OSC has permitted municipalities to undercut state law.
This is mincing words, though.
Ohio’s legislature could kill off all effect from Mendenhall v Akron in an afternoon; saying Akron has power in this situation is like saying I was able to beat my dad when I was 4, because he humored me by letting me punch him for 20 seconds before having me knock it off.
Not necessarily. In some states, authority is ceded to subdivisions by constitutional provisions rather than statute. As a general rule though, yes, the state legislature is trumps.
The bill prohibited actions in state courts too.
Congress could pass a statute prohibiting the sale of certain items under its Commerce Clause power, but that doesn’t mean it can override the authority of a state to regulate internal commerce (such as the sale of fireworks may be sold within its borders) by forcing it to allow the sale of a product..
Just for the record, the gun manufacturer/seller tort bill was ultimately enacted as the Protection of Lawful Commerce in Arms Act, and has been upheld by the Second and Ninth Circuits in City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008), and Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009).
Same in Georgia. Different cities have tried to limit the possession or concealed carry of firearms in their parks or buildings. State law supersedes them, and a local pro 2-A group has sued them all and won.
Then, even when legal to carry a gun in a park, “publicly owned or operated buildings” were still off-limits, so if you had to pee, you couldn’t carry your gun into the restroom on park property.
They sought to have the law changed, and it was.
Georgia law requires any county’s probate court to issue a concealed weapon permit to any eligible applicant within 30 days of application, but many counties would take months, or years, simply because the sheriff or other officials didn’t want to do it. GeorgiaCarry.org sued them, and forced them to obey state law.
Hopefully, the state of New York will see fit to supersede Bloomberg’s idiotic Big Brother Rules of Dieting, and quell the nonsense in NYC, if it’s not all found unconstitutional first.
Although it does not cite a previous case, State v. Parker (1995?) ruled that Municipalities derive thier traffic law power from the Ohio Constitution, NOT the legislative laws, and under the Home Rule provision, Mendenhall can not be stricken by the legislature.
In U.S. state & local government law, the majority rule regarding the relation that local units of government stand in with respect to the state is Dillon’s Rule. In a nutshell, it holds that local units of government are completely subordinate organs of the state, and as such, the state may deal with them as it wishes.
Home rule, according to the American meaning of the term, affords local government an autonomy that non-home rule jurisdictions lack, which adds another dimension to the analysis. Home rule is a somewhat complicated bundle in Illinois (the home rule jurisdiction has enhanced autonomy, but the state can still limit home rule lawmaking, but the state has not done so on all matters, so there remains a real difference between home rule and non-home rule jurisdictions). Home rule jurisidctions also have greater powers to tax, which is considered their disadvantage for their citizens, and which is why home rule has to be approved by referendum.
The federal government overrules state law all the time. Per the Constitution, it’s not supposed to be able to, except in certain areas, but there’s plenty of struggle over the precise boundaries of those areas, and in any case there’s plenty of law that’s been made more-or-less within them.