Although the Second Amendment still tends to get all the attention in debates about firearms law, scholars are starting to pay more attention to state-level preemption laws, which currently present a more significant legal barrier to gun regulation than the Constitution.
Broad changes in preemption law have been a topic of particular concern to scholars of state and local government law in recent years—especially the growth of “the new preemption,” “hyper preemption,” and (as Rich Schragger puts it) the broader attack on American cities. But with a few notable exceptions—Jake’s Securing Gun Rights By Statute being one such example—firearms law scholars (myself included) have tended to focus on core constitutional and historical questions. That’s unsurprising, given the multitude of challenging and interesting issues left in Heller’s wake. But the magnetic pull of the Second Amendment often draws scholarship away from other interesting and important questions that arise under state and local law—I have yet to see a comprehensive scholarly article charting the current state of firearm preemption laws.
Until now, that is. Rachel Simon, a recent Harvard Law graduate now working in private practice, recently posted her article “State Preemption of Local Gun Regulations: Taking Aim at Barriers to Change in Firearm Policy”. It’s the best single piece I’ve seen on the subject. Here’s the abstract:
Forty-five states have adopted express preemption statutes curtailing or entirely prohibiting local gun regulation, and several jurisdictions now threaten localities with penalties for violating such restrictions. These measures have been remarkably effective in reducing the breadth and variety of gun laws nationwide, but their consequences have only just begun to attract attention. Public debates over guns tend to center on the Second Amendment while overlooking state-level obstacles to local lawmaking, and the scholarship on state-local preemption lacks an analysis devoted exclusively to the gun-policy space.
To fill these gaps, this Article provides a comprehensive account of the firearm preemption phenomenon. Part I argues for greater local autonomy with respect to gun rights and regulations, highlighting what is at stake when states preclude communities from responding to local problems and preferences. In Part II, the Article traces the rise of firearm preemption and offers a framework for classifying the relevant statutes. Part III examines the mechanisms through which these laws derail local gun policymaking, and Part IV evaluates strategies for restoring and expanding local authority over firearms.
Ultimately, the Article demonstrates that state preemption is the primary barrier to local gun regulation and a severe constraint on opportunities for addressing many firearm-related challenges. Absent a concerted effort to scale back firearm preemption provisions, local governments will remain incapable of realizing their potential as sites for effective gun lawmaking. These conclusions yield new insights for both the firearms-law literature specifically and the ongoing dialogue around state-local relations more broadly.
One of the many things I like about Simon’s article is that, in addition to its rich descriptive work, the normative argument is measured and nuanced. She recognizes the existence of compliance costs for gun owners when rules vary from place to place, for example, as well as the costs of statewide uniformity. All too often, arguments about firearm preemption (like arguments about gun rights and regulation more generally) run too quickly to extremes: That cities must be free to do whatever they wish with regard to gun regulation, or conversely that any degree of local control will lead to an incomprehensible patchwork of rules that will ensnare unsuspecting gun owners.
Neither of those extreme positions is particularly convincing. While there are strong arguments that some kinds of gun regulation should be done at the state or even national level, many current preemption laws (like those that prohibit cities from passing any rules “relating to” firearms) unnecessarily hamper local variation and experimentation, restrict the effective implementation of life-saving local policies, and threaten constitutional interests even as they are described as a necessary bulwark to protect them. As Simon points out, local governments were traditionally a key locus for gun regulation, so an expansion of local control would be entirely consistent with approaches focused on history and tradition.
The underlying question for preemption is how best to distribute gun regulation authority between states and cities, and that question is unlikely to have a single trans-substantive answer: the arguments look different for regulations on public carry, classes of weapons, classes of persons, and so on. Thoughtful solutions have to be based on a clear understanding of what current preemption laws actually do, and Simon’s article is a very helpful place to start. I hope to see it in print soon.