Does Oklahoma's state firearms preemption law (21 O.S. § 1289.24) prevent a city from enforcing a general zoning rule that bars retail sales out of homes in residential areas?
Plain-English summary
District Attorney Thomas asked whether the City of Altus's zoning rules (which ban or restrict any retail sales out of homes in residential areas) are preempted by Oklahoma's broad firearms preemption statute, 21 O.S. § 1289.24. The AG said no.
Section 1289.24 declares that the State has occupied "the entire field of legislation in this state touching in any way firearms, air powered pistols, air powered rifles, knives, components, ammunition and supplies." Cities are forbidden from regulating firearms sales, transfers, ownership, possession, carrying, registration, and so on. Any conflicting local ordinance is "null and void."
But a zoning ordinance that applies to all merchandise sales out of homes is not in the field of firearms regulation. It is in the field of land use. The two regulatory subjects (firearms vs. land use) are different. The fact that a generally applicable land-use rule incidentally affects home-based gun sellers does not transform it into a firearms regulation.
The AG draws on out-of-state precedents and AG opinions: Frew Run Gravel (NY 1987) on mining vs. zoning, Tennessee 17-26 on firearms manufacturing vs. residential zoning, Michigan 7266 on fireworks vs. tent vending. Each holds that a generally applicable land-use rule survives a state field-preemption statute even where the state has occupied the underlying subject. The Kentucky Court of Appeals in Peter Garrett Gunsmith reached the same result for gun-shop zoning.
The AG also flags an absurdity argument: if § 1289.24 reached generally applicable zoning, it would also reach building codes, fire codes, and transient-merchant licensing. The Legislature could not have intended that.
Important caveat in footnote 7: this opinion does not address ordinances that target firearms specifically (for example, an ordinance that singles out gun shops for special zoning treatment). The AG strongly suggests those targeted ordinances would be preempted. Only generally applicable land-use rules are safe.
What this means for you
If you are a Federal Firearms Licensee or want to sell guns from your home
A generally applicable city zoning rule that bars retail sales out of homes in residential areas applies to you. The state firearms preemption statute does not save you from it.
Practical steps:
- Check the zoning of your home before applying for an FFL or starting home-based sales.
- If your area is zoned solely for residential use, the city's general home-occupation rules govern. You need to comply.
- A challenge to the zoning rule based on § 1289.24 will likely fail if the rule is genuinely generally applicable to all merchandise.
- A challenge would more likely succeed if the rule targets firearms specifically (for example, an ordinance that allows other home-based businesses but forbids home-based gun sales). The opinion expressly leaves that question open and signals such ordinances would likely be preempted.
If you are a city attorney or municipal planner
You can enforce generally applicable zoning rules against home-based gun sellers. Two things to keep your zoning posture safe:
- Make sure the rule is genuinely general. It should govern all retail or commercial use of homes in residential zones, not single out firearms. The same goes for permitting, licensing, signage, and similar regulatory tools.
- Avoid carve-outs that could read as targeting firearms. If you allow home-based art studios but ban home-based firearm sales, the ordinance starts looking like firearms regulation rather than land-use regulation.
If a citizen challenges enforcement under § 1289.24, point to: the general applicability of the ordinance, the legislative intent of land-use regulation, and the cluster of out-of-state authorities the AG relies on.
If you are a district attorney advising a municipality
This opinion is the closest Oklahoma authority on this question. Oklahoma courts have not yet ruled. Until they do, this opinion is the best guidance for cities and the strongest defense for prosecutors enforcing zoning rules against home-based firearms sellers.
If you are a homeowner concerned about a neighbor's home-based gun business
Generally applicable home-based-business zoning rules can be enforced. If your city's residential zoning prohibits commercial sales out of the home, you can complain to the zoning enforcement office. Section 1289.24 does not protect the gun seller from the general zoning rule.
If you are a Second Amendment advocate or Oklahoma legislator
If you want § 1289.24 to reach further (preempting generally applicable zoning that incidentally affects guns), you would need to amend the statute. The current language preempts ordinances "in this field," not ordinances "incidentally affecting" the field. The AG reads "in this field" narrowly.
If you want § 1289.24 to reach less (allowing some firearms-specific local regulation), the same analysis applies in reverse. The opinion treats the field-preemption language as unmistakably broad on firearms-specific subjects.
Common questions
Q: What is field preemption?
A: When a higher-level government (Congress, a state legislature) declares it has occupied the entire field of regulation on a subject, leaving no room for lower-level governments (states, cities) to regulate that subject. Section 1289.24 is a textbook field preemption statute for firearms regulation.
Q: What is the test for whether a local ordinance falls in the preempted field?
A: The opinion looks at whether the local ordinance regulates the subject the State has occupied. If the ordinance regulates a different subject (land use, fire safety, building codes) and only incidentally affects firearms, it is not in the preempted field. The legislature's intent in the preemption statute is the touchstone.
Q: What if a local zoning ordinance targets firearms specifically?
A: The opinion's footnote 7 says: "given the breadth of language the Legislature used in section 1289.24, it is likely that any such ordinance would be preempted." Targeting firearms is regulating firearms. Generally applicable land-use rules are different.
Q: Can a city require a federal firearms licensee to obtain a local business license?
A: This opinion does not directly address that. Section 1289.24 prohibits municipal "licensing, permit, registration" requirements on firearms specifically. A generally applicable business license that applies to all retail businesses likely follows the same logic as zoning: incidental effect, not preempted. A targeted firearms license would be preempted.
Q: What about online sales conducted from home?
A: The opinion treats online sales as a form of merchandise sale. If the local rule restricts all home-based merchandise sales (including online sales), it is not preempted. If the rule singles out online firearms sales, it likely would be preempted.
Q: What about state law conflicts with federal firearms law?
A: Outside the scope of this opinion. Section 1289.24 governs state-vs.-municipal preemption only. Federal law issues (BATFE licensing, Gun Control Act, etc.) are separate.
Q: Does this opinion bind other cities?
A: AG opinions are binding on state officials except when they declare a statute unconstitutional. They are not directly binding on municipalities, but they are the most authoritative interpretation of state law absent a court ruling. Cities can rely on this opinion when defending generally applicable zoning rules.
Q: What's the holding in plain terms?
A: A generally applicable zoning rule = OK. A firearms-specific zoning rule = preempted. The line is whether the rule is in the field of firearms or in the field of land use.
Background and statutory framework
Oklahoma's municipal zoning authority comes from the Oklahoma Municipal Code, 11 O.S. § 43-101: cities may "regulate and restrict the height, number of stories, and size of buildings . . . the location and use of buildings, structures and land for trade, industry, residence or other purposes." For charter cities (over 2,000 residents that have adopted a municipal charter), zoning authority can also flow from the charter itself.
Section 1289.24 was enacted in 1985 in response to a national wave of state firearms-preemption laws. The Oklahoma version is among the broadest, expressly occupying the entire field of firearms, knives, ammunition, and related products. It even creates a private right of action for those whose preemption rights are violated (§ 1289.24(D)), providing for injunctive relief or monetary damages.
The preemption doctrine in Oklahoma adapts the federal three-category framework (express, field, conflict) to state-vs.-local relationships. Express preemption is when the statute says it preempts. Field preemption is when the legislature has occupied the entire subject. Conflict preemption is when state and local regulations directly conflict.
The opinion concludes that § 1289.24 is field preemption. It explicitly occupies the field. The remaining question is the scope of the field. The AG reads it narrowly to cover only firearms-related regulation, not generally applicable land-use rules that incidentally affect firearms.
The cited out-of-state authorities all turn on the same principle: a state field-preemption statute does not strip a locality of its general police power to regulate other subjects (land use, fire safety, transient sales) merely because those general regulations affect the preempted subject in the field. The opposite would, as the opinion notes, lead to absurd results (no fire codes for gun stores, no building permits for ammunition warehouses, no transient-merchant licenses for door-to-door knife sellers).
The opinion does not interpret the specific City of Altus Uniform Development Code provisions, deferring to the principle from 2006 OK AG 31 that "detailed analysis of particular municipal ordinances is not a proper subject for an Attorney General's Opinion."
Citations and references
Statutes:
- 21 O.S. § 1289.24 (Firearms preemption)
- 11 O.S. § 43-101 (Municipal zoning authority)
Cases:
- Cloudi Mornings, LLC v. City of Broken Arrow, 2019 OK 75, 454 P.3d 753 (cities have zoning authority)
- McNair v. City of Oklahoma City, 1971 OK 134, 490 P.2d 1364 (zoning ordinance validity standard)
- In re State Question No. 807, 2020 OK 57, 468 P.3d 383 (preemption taxonomy)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (legislative intent is touchstone)
- Frew Run Gravel Prods. v. Town of Carroll, 518 N.E.2d 920 (N.Y. 1987) (mining preemption did not preempt generally applicable zoning)
- Peter Garrett Gunsmith v. City of Dayton, 98 S.W.3d 517 (Ky. Ct. App. 2002) (gun shop zoning not preempted)
Cited AG opinions from other states:
- Tenn. Att'y Gen. Op. 17-26 (firearms manufacturing zoning not preempted)
- Mich. OAG No. 7266 (tent vending ordinance not preempted by Fireworks Safety Act)
- Tex. Att'y Gen. Op. GA-0110 (glass beverage container ordinance not preempted by alcohol code)
- Va. Att'y Gen. Op. 18-069 (firearms locality zoning not preempted)
- Kan. Att'y Gen. Op. 2012-2 (contrary view: zoning that prohibits home firearms sales is preempted)
Source
- Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-7.html
- Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opinion_2023-7_v-19.pdf
Original opinion text
GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2023-7
The Honorable David R. Thomas
District Attorney, District 3
101 N. Main Street, Suite 104
Altus, Oklahoma 73521
May 18, 2023
Dear District Attorney Thomas:
This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:
Is a municipal zoning ordinance that prohibits or restricts the sale of goods out of the home in areas zoned solely for residential use preempted with respect to the sale of firearms by title 21, section 1289.24 of the Oklahoma Statutes?
I. BACKGROUND
A. Municipal Zoning Authority.
"Cities generally have the authority to enact zoning and regulatory ordinances." Cloudi Mornings, LLC v. City of Broken Arrow, 2019 OK 75, ¶ 17, 454 P.3d 753, 758. Placing restrictions on the use of property, "when proper and reasonable, is an authorized exercise of police power, delegated to municipalities by statute specifically clothing municipalities with the power to zone by legislative enactment." Cauvel v. City of Tulsa, 1962 OK 23, ¶ 9, 368 P.2d 660, 661. The statutory authority for municipal zoning derives from the Oklahoma Municipal Code, 11 O.S. § 43-101.
From the information provided with your request, we understand that the City of Altus has adopted a set of zoning ordinances known as the Uniform Development Code ("UDC"). It is sufficient to note that in adopting the UDC the City of Altus designated certain areas within the city as residential and, in those areas, selling merchandise out of the home is either restricted or prohibited altogether.
B. The Regulation of Firearms and State Preemption.
Originally enacted in 1985, title 21, section 1289.24 of the Oklahoma Statutes broadly declares that state law preempts local regulations with regard to firearms, knives, ammunition, and certain related products. In its current form, section 1289.24 provides, in relevant part, as follows:
The State Legislature hereby occupies and preempts the entire field of legislation in this state touching in any way firearms, air powered pistols, air powered rifles, knives, components, ammunition and supplies to the complete exclusion of any order, ordinance, or regulation by any municipality or other political subdivision of this state. Any existing or future orders, ordinances, or regulations in this field, except as provided for in paragraph 2 of this subsection and subsection C of this section, are null and void.
21 O.S.2021, § 1289.24(A)(1).
II. DISCUSSION
The doctrine of preemption is most commonly encountered in cases of perceived conflict between state and federal law. The Oklahoma Supreme Court has recognized three varieties of preemption: express preemption, field preemption, and conflict preemption.
In the case of section 1289.24, the Legislature was explicit in its intent to "occup[y] and preempt[] the entire field of legislation in this state touching in any way firearms . . . to the complete exclusion of any order, ordinance or regulation by any municipality or other political subdivision of this state." The question is whether this broadly-stated intent can reasonably be read to preempt municipal zoning restrictions that apply equally to all merchandise sales out of homes located in residential areas.
This question does not appear to have been addressed by Oklahoma courts, but similar questions have arisen elsewhere. In Peter Garrett Gunsmith, Inc. v. City of Dayton, 98 S.W.3d 517 (Ky. Ct. App. 2002), an ordinance permitted gun shops only in certain zoning districts. The court held the ordinance was not preempted because it did not "represent regulations in the field of firearm regulation[,]" but rather "regulations in the field of land use, a field of regulation that cities have authority to control."
In Frew Run Gravel Prods., Inc. v. Town of Carroll, 518 N.E.2d 920 (N.Y. 1987), the court held that a state mining law that "supercede[d] all 'local laws relating to the extractive mining industry'" did not preempt a generally applicable zoning ordinance, because:
The zoning ordinance relates not to the extractive mining industry but to an entirely different subject matter and purpose . . . . [T]his incidental control resulting from the municipality's exercise of its right to regulate land use through zoning is not the type of regulatory enactment . . . which the Legislature could have envisioned as being within the prohibition of the statute[.]
In 2017, the Attorney General of Tennessee addressed a question most analogous to the one you pose. The Tennessee statute preempted the field of firearms regulation. A local ordinance prohibited manufacturing of any kind in residential areas. The Tennessee Attorney General explained that the statute and the ordinance regulated different fields: the statute "regulate[d] all things related to firearms and ammunition," while the ordinance "regulate[d] the use of land," and "[t]here is nothing in the statute to suggest the Legislature intended to divest a local government of its authority to regulate land use."
Turning back to the interaction between section 1289.24 and the UDC ordinance, the reasoning in these authorities is persuasive. The Altus zoning ordinance does not deal with firearms or weapons at all. Rather, it appears to be a run-of-the-mill zoning regulation that places similar restrictions on all merchandise sales activities within certain zoning districts of the city. It does not specifically address the sale of firearms, knives, and the related goods listed in section 1289.24, nor does it have the effect of singling out those products for disparate treatment. The ordinance intersects with section 1289.24 only because the items listed in section 1289.24 are capable of being sold from the home. Based on the reasoning outlined above, this is simply not enough to draw the zoning ordinance into the "field of legislation" identified in section 1289.24 such that the ordinance is preempted and rendered null and void.
Were we to reach the opposite conclusion, the results border on the absurd. For example, the City of Altus has adopted generally-applicable building and fire codes that govern the safety of buildings and other structures in the city. Would the city be unable to enforce its building and fire codes with respect to buildings that house firearm retailers? Notwithstanding the broad language of section 1289.24, we find it unlikely that the Legislature intended this provision to reach so far into municipal affairs.
It is, therefore, the official Opinion of the Attorney General that:
A generally-applicable municipal zoning ordinance that prohibits the sale of any goods out of the home in areas zoned solely for residential use is not preempted with respect to the sale of firearms by title 21, section 1289.24 of the Oklahoma Statutes. Such an ordinance regulates land use, while title 21, section 1289.24 preempts local regulations in the field of "firearms, air powered pistols, air powered rifles, knives, components, ammunition and supplies . . . ."
GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA
ETHAN SHANER
DEPUTY ATTORNEY GENERAL