The city is an increasingly common site of contestation for the right to keep and bear arms. Historically, much of gun regulation has been local, such as laws preventing the carrying of firearms into courthouses and schools or requiring that individuals obtain a license or provide a particular reason to carry a weapon. As a result of a concerted effort by gun-rights advocates in the middle of the last century, however, many states have preempted local authority when it comes to firearms. Some states, like Missouri, have proposed permitting (or at least decriminalizing) the carrying of weapons into local government buildings. More than half of states now permit concealed carry in public streets regardless of training or expertise. Still other jurisdictions, such as Texas, have broadly preempted all gun regulation by local governments, effectively rendering the state the only entity authorized to pass firearm-related laws.
Of course, not all local governments want to restrict gun use. Some seek to expand it. A few school districts have sought to arm teachers in response to school shootings, in some cases leading to state laws banning the practice. And some cities and counties have declared themselves “Second Amendment sanctuaries,” committing themselves to resisting any law they regard as curbing gun rights.
Scholars have explored guns and local government from a number of perspectives, but at least one remains unexplored: What is the status of the city itself as a bearer of Second Amendment rights? Can the Constitution be read to confer the right to keep and bear arms on municipal governments? And if so, how would this change contemporary debates about gun regulation?
It’s unsurprising that scholars have not engaged this issue: a city claiming Second Amendment rights must overcome two seemingly insuperable hurdles. First, a longstanding principle of blackletter law maintains that municipal governments have no constitutional rights that can be asserted against their states. Second, even if cities could bear some constitutional rights, after District of Columbia v. Heller the Second Amendment is commonly thought to be an individual right, not one reposed in groups. This post, adapted from our forthcoming article, challenges both these propositions and, in so doing, outlines a theory of the city’s Second Amendment.
First, it is often claimed that cities have no constitutional rights against their states. Cities that try to assert constitutional rights are often dismissed with a brief citation to the Supreme Court’s decision in Hunter v. Pittsburgh, or perhaps a reference to Dillon’s Rule, both of which treat the city as simply an administrative arm of the state – little different than the state department of motor vehicles. The underlying notion is that municipal corporations are merely “artificial entities” that exist only by grace of state charters. Since states can create or destroy these charters at will, these corporations cannot have any independent rights, and certainly none contrary to the state upon which they rely for their very existence.
But this proposition about city powerlessness is frequently asserted without reflection as to its doctrinal accuracy or its theoretical justification. Cities can and do assert constitutional rights against their states, in cases like Romer v. Evans and Washington v. Seattle School District No. 1, and in some procedural cases where the city is a litigant. In fact, courts casually grant cities legal personality in ways that seem to fly in the face of Hunter or Dillon’s Rule, forming what Rich Schragger calls a “shadow doctrine” that a number of other scholars have recognized. Further, in our case by case system of constitutional adjudication, recognition of a municipal corporation’s constitutional claim in one matter demands explanation why it shouldn’t apply in another.
Pragmatically, the notion that local governments are no more than passive administrative entities that carry out state priorities bears no resemblance to the modern American city. If anything, the city may be the most vital of America’s various layers of government. It is small enough to engage in policy experimentation, close enough to its citizens to engage in true democratic responsiveness and participation, and occasionally powerful enough to serve as a meaningful intermediary between individuals and state or national government.
Even if one accepts, as we believe, that the doctrine of municipal personality relies on an outdated conception of the city’s legal status, that does not mean that cities automatically enjoy Second Amendment rights. On the contrary, while law presumes that individual citizens presumptively bear all enumerated constitutional rights, it is not obvious whether private institutions or state actors can assert these protections. One way to think about this issue is that some Bill of Rights protections protect not only individual liberty but also collective activity as well. The First Amendment’s Speech Clause, for example, may be understood not only to protect individuals from state restrictions on their expression, but also to promote a collective interest in a system of free expression, the institutions that make that system meaningful, and the public goods that right is meant to supply.
While the Second Amendment is primarily understood as a bulwark of individual freedom, it too possesses underappreciated collective components, in addition to individual ones. Like the Speech Clause, the right to keep and bear arms may be understood as productive of a collective good as well: public safety. This is clear from the text of the Militia Clause (which reposes the right in “the people”); Heller itself (which nowhere stated that the right to keep and bear arms is a purely personal right); and in the history of the clause (which has its roots in the public peacekeeping functions of private arms-bearing).
The city is a particularly apt institution to promote the public-safety aspects of the right to keep and bear arms. Indeed, cities have their origins in the need for collective self-defense. Throughout this nation’s history, local governments have taken the lead in providing internal security, as the predominance of city watchmen and county police and sheriff’s departments in law enforcement illustrates. Traditionally municipal governments have enjoyed considerable discretion to determine how to preserve their internal security, further illustrating that the city is institutionally well suited to promote the Second Amendment’s public-safety component.
Having overcome the two major objections to situating municipal governments as Second Amendment rights-bearers, the task remains to outline the substantive contours of the city’s right to keep and bear arms. One way this cashes out is that it highlights localities as salient actors in constitutional discourse about arms-bearing. Just as state actors are regarded as free to engage in speech-acts under the “government speech” doctrine, so should municipal entities be able to privilege their own decisions about collective security via arms-bearing. This has two implications: First, that when individuals carry firearms in the employ of the public safety interests of the city, we regard them not as exercising their individual right to keep and bear arms, but a collective exercise on behalf of the state actor. Second, local governments, as the institutions best suited to promote their own collective security, should enjoy some measure of deference to arms-bearing decisions designed to advance that security, even in the face of state or federal laws to the contrary.
So understood, the city’s Second Amendment promises to recast many contemporary debates about the constitution and gun ownership. Consider several examples. First, several Seattle Police Department officers recently sued the City of Seattle on a Second Amendment theory, arguing that restrictions on their use of force that Seattle accepted in a consent decree violated the officers’ individual rights to bear arms. The Ninth Circuit denied the officers’ claim, but accepted the proposition that police had enforceable Second Amendment rights against the cities that employed them. Interposing the government arms doctrine would obviate this argument. It would recast municipal law enforcement officers as bearing not individual rights to bear arms, but rather collective rights to bear arms on behalf of the cities whose internal security they are employed to preserve.
Second, some local governments in New York passed laws empowering teachers to carry firearms in class in an attempt to deter school shootings. The New York state government swiftly prohibited this practice statewide. The local laws in this instance are unorthodox; cities usually repose the responsibility to preserve collective security on the police, rather than teachers, principals, or other school staff. This distinction, though, makes little difference for the analysis. Should a municipality decide on a particular strategy for preserving public safety, that should merit deference, regardless of whether the outcome is regulation or deregulation of firearms. Of course, such decisions would be subject to the constitutional means/ends scrutiny to avoid irrational or arbitrary decision making. In addition, a municipal decision to empower school personnel to threaten deadly force does not relieve them of their obligation as state actors to employ those arms in conformity with other restrictions, like the Fourth Amendment.
Finally, many American counties and cities have declared themselves “Second Amendment sanctuaries,” passing legislative resolutions suggesting that they will resist any firearm regulations they regard as unconstitutional. These resolutions have to date been largely symbolic – but imagine that a state passed a law requiring universal background checks for gun purchases, and a self-declared sanctuary city refused to obey, issuing firearms to all comers, regardless of the regulation. Here, the city would have to articulate a plausible explanation why implementing universal background checks would hamper its ability to promote public safety on behalf of its residents. And there may be some reason to treat regulations on bearing firearms for public safety differently from those designed to regulate a right to keep firearms for defense at home.
The city plays a central role in many contemporary controversies over the scope of the recently vivified Second Amendment. Yet thanks to the city’s lack of constitutional personality and the common understanding of the right to keep and bear arms solely about individual rights, scholars have ignored whether the city itself has a constitutional interest in these debates. This blog post has contested both of these propositions and outlines an affirmative vision of the city’s Second Amendment. Asking whether municipal governments can assert the right to keep and bear arms not only adds to the growing debate about the contours of the post-Heller Second Amendment, but also contributes to scholarly debate over the legal status of the contemporary American city.
This joint post by Dave Fagundes & Darrell Miller was adapted from Dave Fagundes & Darrell A H. Miller, The City’s Second Amendment, Cornell Law Review (forthcoming 2020).
[Ed. note: This post is part of series of guest posts from scholars at the Center’s recent colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms.]