HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.sag/sagia0007 and id is 1 raw text is: Office of the Attorney General
State of Iowa
*1 Opinion No. 03-4-1
April 7, 2003
MUNICIPALITIES; WEAPONS; PREEMPTION: Authority of city to impose restrictions upon carrying weapons.
Iowa Code 5§ 364.1, 724.4 and 724.28 (2003). The Iowa courts would likely construe the preemption
provision contained in Iowa Code section 724.28 narrowly and find that the statute does not interfere with the
authority of a city to exercise its home rule power to place restrictions upon the possession of weapons which
apply only to buildings owned or directly controlled by the city. (Odell to Wise, State Representative, 4-6- 03)
#03-4-1
The Honorable Philip Wise
State Representative
State Capitol
LOCAL
Dear Representative Wise:
You have requested an opinion of the Attorney General regarding the validity of an ordinance approved by the
West Burlington City Council restricting possession of firearms by non-law enforcement or military personnel
within municipal buildings. Specifically, you posed the following questions:
1) Can the City of West Burlington enforce this weapons ban without contravening Iowa Code section 724.28?
2) Can the City of West Burlington enforce this ordinance against a person licensed to carry a weapon under
Iowa Code section 724.4 and who possesses that weapon in compliance with Iowa Code section 724.4(4)?
Iowa Code section 724.28 includes an express limitation upon the ability of a political subdivision to regulate
firearms. However, for the reasons that follow, we do not believe that Iowa Code section 724.28 would be
interpreted as preempting a political subdivision from enacting and enforcing limitations upon the possession
of weapons which are narrowly limited to buildings owned or directly controlled by the political subdivision.
Before addressing the questions you posed, it may be helpful to review two concepts which determine the
validity of municipal legislation: (1) the city's home rule authority and (2) the state's power to preempt local
action. These concepts and their interrelationship are set forth in the Municipal Home Rule Amendment of
Iowa's constitution:
Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the
General Assembly, to determine their local affairs and government, except that they shall not have power to
levy any tax unless expressly authorized by the General Assembly.
The rule or proposition of law that a municipal corporation possesses and can exercise only those powers
granted in express words is not a part of the law of this state.
Iowa Const. art III 38A. JFN11
Iowa Code chapter 364 sets forth the powers and duties of cities. The statute essentially mirrors the
municipal home rule amendment, providing that
[a] city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the
general assembly, exercise any power and perform any function it deems appropriate to protect and preserve
the rights, privileges, and property of the city or of its residents, and to preserve and improve the peace,
safety, health, welfare, comfort, and convenience of its residents....
*2 Iowa Code § 364.1 (2003); see also Iowa Code q 364.2(2) (2003) (A city may exercise its general
powers subject only to limitations expressly imposed by a state or city law).
While the concept of home rule clearly envisions the possibility that both the state and a city may regulate in
the same area, a city's power to govern its local affairs may be preempted by state law. The concept of
preemption finds its source in the constitutional prohibition against the exercise of a home rule power that
is inconsistent with the laws of the general assembly. Iowa Const. art. III, section 38A. An exercise of a city
power is inconsistent with a state law only if it is irreconcilable with the state law. Iowa Code section 364.2
(3) (2003); see Goodell v. Humboldt County, 575 N.W.2d at 492. Preemption may be express or implied.
Express preemption occurs when the general assembly has specifically prohibited local action in an area.
Obviously, any ordinance that regulates in an area the legislature has specifically stated cannot be the subject
of local action is irreconcilable with state law. Implied preemption occurs in two ways. When an ordinance
prohibits an act permitted by a statute, or permits an act prohibited by a statute, the ordinance is considered
inconsistent with state law and preempted. Implied preemption may also occur when the legislature has
covered a subject by statutes in such a manner as to demonstrate a legislative intention that the field is](ViewImageLocal?handle=hein.sag/sagia0007&div=1&collection=&method=preview&ext=.png&size=3)