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Preemption: Field vs. Conflict

TFred

Regular Member
Joined
Oct 13, 2008
Messages
7,750
Location
Most historic town in, Virginia, USA
Interesting case out of Michigan about their preemption law. My question will be, is there a similar distinction in Virginia?

Apparently the Michigan case came down to a difference between "field preemption" and "conflict preemption." Whether there is a similar distinction in Virginia or not, I've seen countless instances where people seem to apply "conflict preemption", while it seems to me that our code is a "field preemption."

From the article, No, The Michigan Supreme Court Did NOT Rule That Schools Can Ban Guns:

Field preempted means that an entity cannot have policies regulating a certain topic, even if there is no superior law on the matter. In our case, this would mean that schools would be barred from having any policies relating to firearms.

Conflict preempted means that an entity may regulate a certain topic, however their regulation must bow to superior law where the two conflict. In our case, this would mean that schools may have policies relating to firearms, but those policies may not prohibit what is allowed by state law nor permit what is prohibited by state law.​

What I've seen in the past are people who seem to think it's OK for a city or a county to pass a firearms related ordinance, so long as it does not more tightly regulate than the Code of Virginia. But if you read the preemption statute, it quite clearly says that no ordinances regarding firearms are allowed.

So, is there a similar distinction in Virginia? From the plain-text reading of the code, it seems to me that the Virginia preemption code is field preemption, not conflict preemption.

Fortunately we don't have a lot of preemption abuse in Virginia, but the distinction was curious, and something I thought others might like to read about, and keep in mind as you happen to notice the actions of local jurisdictions in the future.

TFred
 

user

Accomplished Advocate
Joined
Feb 12, 2009
Messages
2,483
Location
Northern Piedmont
it's not "field conflict", it's "Field conflict" - as in David Dudley Field, the author of the civil code used in New York since 1850. The function of the Field Code was to eliminate the common law of England as a source of binding authority. Va. Code sxns 1-200 and 1-201 make it clear that whatever the law of England was in the fourth year of the reign of James I (1607, the founding of Jamestown), that's the law of Virginia today, unless repugnant the the Constitution and statutes of the Commonwealth. The reason that's significant is that the "Dillon rule" is based on the common law principle that a creature can have no greater power than its creator has granted it. And, just to be clear, municipal corporations such as counties and cities are "creatures" of the Commonwealth, the sovereign which has created them (and can uncreate them at any time). When the common law went away in New York (barbarians and uncivilized heathens as they are), the basis for that principle went away, and all that was left of a thousand years of painful jurisprudential development was the "Field Code".

(See the handout pdf at http://vagovernmentmatters.org/case-studies/449).
 
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