abstract. Second Amendment doctrine is largely becoming a line-drawing exercise, as courts try to determine which “Arms” are constitutionally protected, which “people” are permitted to keep and bear them, and in which ways those arms and people can be regulated. But the developing legal regime has yet to account for one potentially significant set of lines: the city limits themselves. In rural areas, gun crime and gun control are relatively rare, and gun culture is strong. In cities, by contrast, rates of violent gun crime are comparatively high, and opportunities for recreational gun use are scarce. And from colonial Boston to nineteenth-century Tombstone to contemporary New York City, guns have consistently been regulated more heavily in cities—a degree of geographic variation that is hard to find with regard to any other constitutional right. This Article argues that Second Amendment doctrine and state preemption laws can and should incorporate these longstanding and sensible differences between urban and rural gun use and regulation. Doing so would present new possibilities for the stalled debate on gun control, protect rural gun culture while permitting cities to address urban gun violence, and preserve the longstanding American tradition of firearm localism.
author. Associate Professor, Duke Law School. The Eugene T. Bost, Jr. Research Professorship of the Charles A. Cannon Charitable Trust No. 3 at Duke Law School provided invaluable support for the production of this Article. Many thanks to Stuart Benjamin, Josh Chafetz, Phil Cook, Saul Cornell, Anuj Desai, Jeffrey Fagan, Kristin Goss, Tim Hall, Lester Hunt, Marin K. Levy, Greg Magarian, Jeff McMahan, Darrell Miller, Michael O’Shea, Joseph Olson, Jeff Powell, Mark Rosen, Larry Rosenthal, and Sayre Weaver for comments and criticisms. Jennifer Behrens, Mark Frassetto, John Long, Eric Mattingly, Conor Reardon, and Daniel Rice provided valuable research assistance. Errors are of course my own.
The image of hardy, frontier-dwelling Americans defending themselves and their families with guns has long captured the imaginations of the public, scholars, commentators, and at least one very important vote on the Supreme Court.1 Though modern urban areas like Chicago and Washington—the cities whose handgun bans were struck down in the Supreme Court’s two recent Second Amendment decisions2—have arguably strayed from it,3 the vision of armed self-defense in frontier towns remains a powerful archetype. The legal reality, however, was more complicated. Nineteenth-century visitors to supposed gun havens like Dodge City, Kansas, and Tombstone, Arizona, could not lawfully bring their firearms past the city limits.4 In fact, the famed shootout at Tombstone’s O.K. Corral was sparked in part by Wyatt Earp pistol-whipping Tom McLaury for violating Tombstone’s gun control laws.5 Matters were entirely different outside of town, where guns were both legal and prevalent for self-defense and other purposes.6 The city limits themselves thus played an important role in defining the scope of the right to keep and bear arms.
The not-so-wild West is representative in this regard. Indeed, perhaps no characteristic of gun control in the United States is as “longstanding”7 as the stricter regulation of guns in cities than in rural areas. In the Founding era, many cities—Philadelphia, New York, and Boston prominent among them—regulated or prohibited the firing of weapons and storage of gunpowder within city limits,8 even while the possession and use of guns and gunpowder were permitted in rural areas. That geographic tailoring has remained largely consistent in the two centuries since, and it is no accident that District of Columbia v. Heller9 and McDonald v. City of Chicago10 both involved municipal gun regulation.
This Article argues that future Second Amendment cases can and should incorporate the longstanding and sensible differences regarding guns and gun control in rural and urban areas, giving more protection to gun rights in rural areas and more leeway to gun regulation in cities. Part I describes the significant differences between urban and rural areas with regard to the prevalence, regulation, perceived importance, use, and misuse of guns. Violent gun crime and support for gun control are heavily concentrated in cities, while opposition to gun control is strongest in rural areas, where the costs of gun crime are lowest. Rural residents are far more likely to own firearms than people living in cities, and have more opportunities to use them for lawful activities like hunting and recreational shooting. These differences, while certainly not universal—not every city has stringent gun control,11 nor do all rural residents oppose it—are so stable and well-recognized that they have calcified into what are often referred to as different gun “cultures.”12
But while this cultural divide is well-established and long-standing, it rarely figures prominently in discussions of constitutional doctrine, and rarer still is it seen as an opportunity rather than an obstacle. This is unfortunate and unnecessary, because Second Amendment doctrine already contains the tools with which to achieve geographic tailoring. Heller and McDonald left the contours of Second Amendment doctrine fuzzy, aside from approving a set of “presumptively lawful” gun control measures.13 The opinions did, however, suggest two major jurisprudential alternatives: one rooted in historical analysis, the other in interest balancing.14 Part II shows how either road can lead to a locally tailored Second Amendment.15
First, the majorities in Heller and McDonald endorsed a historical-categorical approach that evaluates contemporary gun control measures based on whether they have “longstanding” historical analogues.16 This approach is categorical in that it eschews interest-balancing, focusing on line-drawing rather than cost-benefit analysis.17 Lower courts applying it have looked not just to Founding-era regulations, but to the broad sweep of gun control throughout American history.18 Under this historical-categorical approach, the fact that the United States has a deeply rooted tradition of comparatively stringent urban gun control is an argument for treating contemporary urban gun control as, if not “presumptively lawful,”19 at least meriting special deference. As noted above and described in more detail below,20 cities have traditionally enacted the country’s strictest gun control measures, including handgun bans, safe storage requirements, limits on public carrying, and prohibitions on shooting guns within city limits. To be sure, the historical record is neither complete nor uniform. But it appears to be at least as persuasive as the evidence supporting other Second Amendment rules specifically approved by the Court in Heller—the ban on felons in possession, for example.21
Judges and scholars have questioned the wisdom and coherence of the historical-categorical approach,22 and many lower courts seem to have shelved it in favor of the pragmatic balancing described by Justice Breyer in his Heller dissent.23 The latter, which has much in common with the standards of scrutiny found in other areas of constitutional law, evaluates the constitutionality of gun control laws based on the strength of the governmental and private interests involved and the degree to which a given law serves the former while protecting the latter.24 Here, too, the case for local tailoring of Second Amendment analysis is straightforward, for the simple reason that cities and rural areas generally have different gun-related interests and face different gun-related challenges.25
Part III broadens the frame by showing how ongoing debates about the general virtues of constitutional localism are relevant to firearm localism and vice versa. Some constitutional rights are already locally tailored,26 and a growing number of scholars have explored and celebrated the role of localism in constitutional law.27 Of course, the question of whether any particular right should be locally tailored is ultimately a specific and normative one,28 which is why the argument for firearm localism is built on a foundation of geographic tailoring that is unique to gun rights and gun control. But the broader case for constitutional localism confirmsthat this would not mean treating the Second Amendment as some kind of second-class right.
Section III.B shows how localism arguments would impact not only federal constitutional doctrine, but also state law. Over the past few decades, most states—acting largely in response to local-level handgun bans29—have passed laws forbidding or simply limiting municipal gun control.30 These preemption laws do not reach all cities, nor do they forbid all gun control, so a localized Second Amendment would have significant reach even under current law. But many of the arguments for Second Amendment localism also suggest that broad preemption laws are an undesirable break from historical practice. Especially in the wake of Heller and McDonald, which constitutionally guarantee the rights that preemption laws purport to protect, the laws themselves can and should be modified or repealed.
Of course, there are various objections, some of them quite strong, to the idea of firearm localism. One might argue that increased deference to urban gun control would undermine the self-defense rights of people living in high-crime inner cities. Or perhaps instead of achieving too much, firearm localism would be crippled from the start by the practical difficulty of defining urban and rural areas. Section III.C attempts to answer these and other objections.
Other potential questions and objections can be answered preemptively by clarifying what this Article does not argue. Firearm localism would not exempt cities from the Second Amendment, nor would it permit evisceration of the right to keep and bear arms for self-defense. It would instead mean giving cities extra leeway with regard to matters like the regulation of assault weapons or concealed carrying. Conversely, firearm localism is not an argument againstall state or national gun control. As with any other issue, there are some matters that cannot be regulated effectively at the local level31—manufacturing requirements, for example—and others that can, such as public carrying rules that can be enforced on the spot by local police.
The Article concludes by showing how firearm localism might address ongoing Second Amendment debates regarding the regulation of assault weapons and concealed carrying. With regard to the former, Heller holds that the “Arms” protected by the Amendment are those in common use, but does not explain how to separate protected arms from proscribable “dangerous and unusual weapons.”32 Firearm localism would rely on local standards to make that distinction, just as First Amendment doctrine does when separating obscenity from protected speech.33 It would also justify increased deference for urban prohibitions of concealed carrying—such laws have long been accepted as constitutional,34 and have a special claim on constitutionality in cities.35 Either of these specific forms of tailoring would help preserve the firearm localism that has always been a part of our legal tradition.
I. america’s two gun cultures
Though sizeable majorities of Americans agree on certain basic precepts about the Second Amendment—that it protects an “individual” right to bear arms36 but permits reasonable gun control laws,37 which should be more strictly enforced38—“pro-gun” and “pro-gun control” beliefs are not evenly distributed throughout the country. Scholars and commentators have long recognized this, often describing the gun control debate as being between the South and the rest of the nation,39 between “cosmopolitan” and “bedrock” America,40 or between a “primary” gun culture that includes the South, West, and Midwest and a “secondary” gun culture in coastal, urbanized states and cities.41
These line-drawing efforts capture important characteristics, but perhaps the most consistent underlying differences are those between urbanand ruralgun cultures.42 Americans in cities are, and apparently always have been, less likely to own, use, or approve of guns than those in rural areas. City-dwellers are victimized by gun crime at much higher rates, and are far more likely to support stringent gun control. Rural residents, by contrast, are more likely to grow up with guns, to have positive role models with regard to their responsible use, and to oppose gun control. These differences are historically consistent, and they tend to be obscured by doctrinal analysis that focuses solely on states and the federal government.43 Taking urban-rural differences into account would have a significant impact, even if “urban” is narrowly defined. As Carl Bogus notes, the fifty metropolitan statistical areas with one million or more people “comprise only a small fraction of the nation’s land mass but include about 58% of the nation’s population.”44 They also suffer a disproportionate amount of the nation’s gun violence.45
It is worth noting that scholarship in this area is rife with disagreement over basic empirical facts—whether defensive gun uses average 2.5 million per year46 or 80,000,47 for example, or whether more guns lead to more or less crime.48 Scandals involving flawed historical research49 or survey results that could not be replicated50 cast clouds over even the most seemingly robust findings, and tend to entrench each side’s belief that the other is playing fast and loose with the facts. The goal of this discussion is simply to show that Americans are deeply divided about guns and gun control—a proposition that few would dispute—and that this division tracks the urban/rural line. The aim is not to prove that all rural areas or residents are part of the gun culture, nor that all cities and urban dwellers reject it. Rather, it is to show that the differences between urban and rural gun cultures are real, and should influence our evaluation of the constitutionality of gun control.
A. Rural Gun Culture
America’s gun culture generally celebrates the ownership, possession, and use of firearms,51 and is skeptical of gun control.52 It is “predominantly rural and small town,” just as “its enemies are predominantly urban.”53
Perhaps the most basic element of rural gun culture is, naturally enough, the prevalence of guns. Study after study has shown that “[g]un ownership is more common among those residing in small cities and towns and in the suburbs compared to those living in large cities.”54 The precise figures vary, but one representative survey found that “[o]nly 29% of urban residents own a gun while 56% of rural residents do so.”55 This difference is noticeable even at the state and regional level, as households in states that are themselves more rural—primarily those in the South and West—are more likely than those in the Northeast to have guns.56 The General Social Survey found that only 23% of urban households had guns in the 2000s, compared to 56% in rural areas; the same study found that 22% of households in the Northeast had guns, compared to roughly 40% in the comparatively rural South and mountain regions.57 Other studies have found similar figures.58 This “strong regional pattern” of gun ownership “has been quite stable over time, suggesting that the determinants of gun prevalence have more to do with tradition, culture and childhood experience than with concern about crime or other relatively volatile matters.”59 In fact, until quite recently, recreation—including hunting, which is a predominantly rural pursuit—was the single most common reason for gun ownership in the United States.60 It is no surprise, then, that gun ownership is highest among people who self-identify as hunters, nor is it surprising that they are likelier to own rifles and shotguns than handguns.61
Perhaps even more important than the simple instrumental point that one must have guns in order to hunt things with them is the fact that for members of the gun culture, “guns symbolize a cluster of positive values, from physical prowess and martial virtue to honor to individual self-sufficiency.”62 As Justice Antonin Scalia himself has put it, “The hunting culture, of course, begins with a culture that does not have a hostile attitude toward firearms. . . . The attitude of people associating guns with nothing but crime, that is what has to be changed.”63 The Justice’s argument and his repeated invocation of “culture” drive home the point that the issue is not simply what guns do, but also what they symbolize. Other accounts of gun culture have the same emphasis:
The values of this culture are best typified as rural rather than urban: they emphasize independence, self-sufficiency, mastery over nature, closeness to the land, and so on. Within this culture, the ownership and use of firearms are both normal and normatively prescribed, and training in the operation and use of small arms is very much a part of what fathers are expected to provide to their sons—in short, this training is part and parcel of coming of age.64
For members of the gun culture, “the possession, handling, and use of guns are a central part of life”; they “read books and magazines about firearms and socialize with kindred spirits in gun clubs and gun stores.”65
One might argue that this gun culture is flatly irrelevant to the interpretation of the Second Amendment, at least to the degree that it is rooted in recreational pursuits like hunting that are penumbral to the self-defense right recognized in Heller.66 If the core interests of the gun culture are not constitutionally salient, then there is little reason to use them as a guide for interpreting the Second Amendment, and the frequent invocation of hunting in connection with the right to keep and bear arms should be treated as nothing more than empty rhetoric.67
Although historically speaking self-defense might not be as central to rural gun culture as hunting,68it represents an increasingly common—and perhaps now predominant69—reason for gun ownership. This might largely be due to the decreasing popularity of hunting,70 but it is also easy to see how armed self-defense could have particular value to rural residents who cannot count on speedy responses from police.71 As Erik Luna notes, “There are . . . instrumental reasons for pastoral gun ownership, including . . . the need for rural citizens to supplement diffuse law enforcement agencies.”72
The prevalence of guns in rural areas also correlates with certain costs, one of which is a higher rate of accidental shootings and suicides,73 including those involving children.74 Nevertheless, opposition to gun control remains relatively strong in rural areas.75 One recent study found that while 56% of urban residents favored stricter gun control, only 34% of rural residents did—numbers roughly comparable to those for non-gun owners (59%) and gun owners (31%).76 One might think that hunters would be more willing to part with their guns than those who own them solely for self-protection,77 but some evidence suggests that just the opposite is true.78 The best explanation for this might simply be that, as Gary Kleck puts it, “hunters are likely to be a part of a gun subculture, which would imply being raised in a gun-owning family, associating with other gun owners, engaging in valued gun-related recreational activities including target shooting as well as hunting, and being exposed to more anticontrol rhetoric.”79 In other words, they are more likely to be members of a robust gun culture.
B. Urban Gun Control Culture
Just as gun culture is disproportionately prevalent in rural areas, urban areas disproportionately have what might be called a gun controlculture. City-dwellers are roughly half as likely as rural residents to own guns,80 and are far more likely to support gun control.81 Kristin Goss writes that “[g]un control sentiment has always been strongest in urban areas,”82 and Kleck similarly concludes that “research has . . . found gun control support stronger among city dwellers and suburbanites.”83 This support manifests itself among some of the strongest and most forceful advocates for gun control—urban police chiefs84 and mayors.85 And it cannot be explained by regional differences, for the urban/rural divide is noticeable even within states.86
It is no surprise, then, that the vast majority of gun control regulations in the United States are local,87 and are tailored to the particular risks of gun use in densely populated areas. Common categories of municipal regulations are those governing classes of weapons,88 sales and transfers,89 gun dealers and other sellers,90 gun ownership,91 and consumer and child safety.92 Permit requirements are also relatively common, and can be very restrictive.93 Of course, such restrictions are not uniformly adopted in all cities, and many (perhaps most) urban areas do not currently impose much or any gun control of their own. One reason for this, explained in more detail below, is that most states preempt some or all local gun control.94 This suggests that existing urban gun control laws underrepresent—perhaps significantly so—the breadth and scope of laws that cities would pass if they had the authority.
The primary target of such local regulation is gun-related crime. And though the empirics are messy and contested, gun crime is clearly an urban problem.95 A 2006-2007 study from the Centers for Disease Control and Prevention found that “[t]he 62 center cities of America’s 50 largest metro areas account for 15 percent of the population but 39 percent of gun-related murders.”96 A 2013 study found that 69% of gun crimes in Connecticut take place in three major cities, which contain just 11% of the state’s population.97 Connecticut is not unique in that regard. As Carl Bogus notes, “[t]he murder rate for the nation’s metropolitan areas is about double the rates for either small cities or rural areas,” and “[t]he difference in the robbery rate is even more pronounced: the small city rate is only 36% of the metropolitan rate, and the rural rate is nine percent of the metropolitan rate.”98 Of course, such crime is a complicated phenomenon, subject to influences other than the prevalence of guns.99 But at least for some urban populations—African-American men in particular100—guns contribute to an increased rate of violent death.101
One might argue that these are precisely the populations that need guns the most. Heller, after all,identified armed self-defense as the “core” and “central component” of the Second Amendment.102 That right seems especially salient in high-crime urban areas, and unsurprisingly, some city-dwellers respond to the threat of urban crime by arming themselves. Adam Winkler writes that “one of the most powerful elements in today’s gun rights movement represents urban gun owners: people who value firearms as a last line of defense against criminals.”103 But the gun ownership statistics described above demonstrate that, despite high rates of violent crime, urban residents are disproportionately unlikely to purchase and possess guns.104 Indeed, they are much morelikely than rural residents to support stringent gun regulations.105 Why?
One obvious explanation is that urban residents have concluded—whether rightly or wrongly is beyond the scope of the present argument—that gun control will make them safer, despite the limitations such control might place on their ability to defend themselves with guns. Another explanation is analogous to the account of rural gun culture outlined above: support for gun control is a cultural matter not rooted in empirical suppositions regarding crime. Indeed, those who support gun control tend to do so notwithstanding their skepticism that it actually stops crime.106 Gary Kleck notes that “gun control support is not increased by higher crime rates. Residents of high-crime cities are not significantly more likely to support gun control than those in low-crime cities.”107 This suggests that, with regard to gun control, residence in an urban area trumps the experience or fear of crime.
In short, it seems that urban areas have developed a gun control culture that is, like rural gun culture, centered on certain core beliefs. As Dan Kahan explains, proponents of gun control “find the cultural significations of guns to be abhorrent and alarming; they see gun control as symbolizing a competing set of positive values, including civilized nonaggression, racial and gender equality, and social solidarity.”108 Where members of the rural gun culture see firearms as a positive and beneficial part of life, members of the urban gun culture see them as threats not only to safety but to their core values. Lee Kennett and James LaVerne Anderson conclude, “The city has spawned the new and negative view of the gun . . . .”109
Whether this view is actually “new” is unclear. Justice Scalia apparently believes it to be: “I grew up at a time when people were not afraid of people with firearms . . . I used to travel the subway from Queens to Manhattan with a rifle. Could you imagine doing that today in New York City?”110 But many scholars argue that urban gun control culture is older than the Court’s senior Justice. Steven Thomas Seitz suggests that modern “cosmopolitan Americans who find little utility in the gun” reflect the “remnants of cultural traditions brought by emigrants from Europe to America.”111 Even Kennett and Anderson conclude that “during the colonial period, the urban areas were relatively free of the consistent use of firearms.”112 And as Section II.A describes in more detail, comparatively strict urban gun control is a longstanding phenomenon.
C. Why the Division Matters
It would be hard enough to bridge the gap between these views about guns if they were fully predicated on disagreement about empirics. But the debate is, sometimes for the better and often for the worse, deeper than that.113 It implicates identity and values,114 and is therefore hard to resolve by marshaling evidence for one side or the other. This can be discouraging, because it contributes to invective-filled debates in which each side becomes frustrated by the other’s inability to see what is obviously “right.”115 Many rural gun owners believe—with some justification—that urban gun control advocates are passing moral judgments on gun culture,116 while those advocates are in turn bewildered by the claim that AR-15s and high-capacity magazines are necessary for hunting or self-defense.117
Fortunately, these ideological differences are geographically concentrated, which opens an unexplored possibility for a truce: firearm localism, which would give urban areas more leeway to regulate firearms within city limits while preserving the ability of rural areas to maintain their strong gun culture. Thus even if it is impossible to bridge gun culture and gun control culture,118 it is also unnecessary. This should be a welcome result for both camps. Rural residents should not have to weigh their desire to own hunting rifles against the possibility that urban youth will use handguns to shoot each other. And advocates of urban gun control should not have to denigrate the cultural salience of hunting in Montana when their goal is to limit cheap pistols in Manhattan. As New York Mayor Michael Bloomberg and Boston Mayor Thomas Menino, co-chairs of Mayors Against Illegal Guns, recently put it: “[W]e know that a policy that is appropriate for a small town in one region of the country is not necessarily appropriate for a big city in another region of the country.”119
The possibility of such accommodation is all the more important in the wake of Heller and McDonald. By finding the existence of an individual right to keep and bear arms independent of militia service, and then incorporating that right against state and local governments, the Supreme Court raised the possibility of a nationalized approach to gun control—one that would hold cities, states, and the federal government to identical rules. The response to Heller reveals the fault line implicated by that approach: “The reaction broke less along party lines than along the divide between cities wracked with gun violence and rural areas where gun ownership is embedded in daily life.”120
A rigid national standard would flatten these deep differences, potentially to the detriment of bothgun cultures. For members of the rural gun culture who oppose gun control and would prefer stringent review of gun control measures, the threat—as in prior incorporation debates—is that their rights will be watered down.121 Michael O’Shea argues persuasively that
the courts are far more likely to protect Southerners, Westerners, and Midwesterners in their right to acquire modern self-loading rifles if the courts can do so without thereby discarding the “assault weapons” laws of the secondary gun culture states, and thereby (as the judges might see it) bringing AR-15s to high-rise apartments in Manhattan.122
Urban residents will likely have the opposite concern: that if the Second Amendment is calibrated so as to give rural residents access to firearms for hunting and other recreational uses, it will thereby prevent city-dwellers from protecting themselves against firearms that are being used for murder. This would effectively force urban residents who might care little about hunting in rural areas to subsidize that activity with their own safety.
But the more serious problem with achieving political compromise is that the debate is not simply one about policy analysis. Rather, the underlying conflict is largely about values, and there is no way to resolve such aconflict by appealing to empirics.123 As David Kairys puts it, “[s]omething else is going on, and at its core is a personal, cultural, and political identification of guns with personal self-worth and with our highest ideals.”124 Dan Kahan, who along with Donald Braman has thoroughly investigated the cultural salience of gun control,125 concludes that progress can still be made if voices of moderation, “in the spirit of genuine democratic deliberation, appeal to one another for understanding and seek policies that accommodate their respective world views.”126
One way to accommodate those worldviews is through geographic variation in gun laws, allowing each culture to regulate itself.127 Some scholars have endorsed such an approach, but they have focused almost exclusively on potential diversity of state laws, and on the possibility of increased deference to state as opposed to federal regulation.128 O’Shea, for example, argues that courts should employ a bifurcated standard of review under which “national gun laws receive strict scrutiny, while state and local gun laws receive intermediate scrutiny.”129 There is much merit in this approach. But as the preceding discussion suggests, it would not capture the important and consistent differences between urban and rural areas.130
This discussion has painted a picture using very broad strokes, and therefore cannot capture the details. Some rural areas might have stringent gun control—bans on concealed carrying originated in the comparatively rural South131—and many major cities definitely do not.132 And many millions of people live in areas dominated by a culture of which they are not a part. The best that this discussion can demonstrate is that gun culture is disproportionately concentrated in rural areas, and gun control culture in urban areas. Firearm localism would take that geographic difference seriously.
II. the case for firearm localism
The first Part of this Article focused mainly on political and sociological characterizations of America’s two gun cultures. One could, however, accept the basic accuracy of these admittedly imprecise portraits without concluding that Second Amendment doctrine should, or even can, take account of them. Perhaps the distinction between urban and rural areas is the kind of division that, no matter how deep, the Amendment must ignore, like differential rates of gun crime and victimization between men and women or African Americans and whites.
This Part argues to the contrary that the Second Amendment need not be blind to the reality of our gun cultures, that urban gun control should receive increased deference and, symmetrically, that rural gun rights are entitled to increased protection.133 Constitutional law generally, and Second Amendment doctrine in particular, already provide the tools with which to achieve this tailoring. Both the historical-categorical approach employed by the majorities in Heller and McDonald and the interest-balancing approach endorsed by the dissents (and embraced by many lower courts in subsequent cases) permit special deference to urban gun control—the former because of the “longstanding” tradition of stricter urban gun regulation; the latter because cities have different interests than rural areas when it comes to gun control.
A. The Historical-Categorical Approach to Second Amendment Localism
The historical-categorical approach evaluates the constitutionality of contemporary gun control laws based on their similarity to “longstanding” restrictions134—it focuses on tradition, rather than cost-benefit analysis. And as the following discussion explains, American cities have traditionally had much more stringent gun control than rural areas. To the degree that Second Amendment doctrine follows the historical-categorical path, it should continue to give broad leeway to urban gun control, precisely because of this lineage.
In Heller, the Supreme Court blessed as constitutional a wide array of gun control laws, not because they reduce crime or other harms, but because of their historical lineage. The majority specifically rejected what it called a “freestanding interest-balancing approach,”135 instead turning to historical practice to discern the permissible scope of firearm regulations. In a passage that has inspired a fair bit of confusion and criticism,136 the majority wrote:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.137
For similar tradition-based reasons, the Court held that the Amendment permits the prohibition of “dangerous and unusual weapons.”138 In McDonald, the Court reaffirmed its approval of these forms of gun control,139 and of the historical-categorical approach as well.140
It seems that those “traditions are themselves the stuff out of which the Court’s principles are to be formed,” as Justice Scalia explained at length in another context:
[W]hen a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court’s principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out. . . . I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court.141
Substituting “Second” for “First,” this passage describes the approach Justice Scalia took in Heller.142But although the concept of a longstanding regulation was central to the holding of the case, Justice Scalia’s majority opinion did little to explain what it means. As Allen Rostron notes, the Court “did not specify what it takes for a law to qualify as longstanding.”143 Indeed, it is unclear whether the practices so designated can accurately be described as longstanding.144
Somewhat more detail can be gleaned from the Court’s efforts to use what has been called the “common use” test145 to determine what kinds of “Arms” are protected by the Second Amendment. The majority read its precedents to stand for the proposition that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”146 Handguns, for example, are covered in part because of their longstanding popularity for self-defense use:
It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. . . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.147
By contrast, bans on certain other weapons are “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”148
The key point for present purposes is not the precise contours of the “Arms” protected by the Second Amendment, but rather the method by which the historical-categorical approach identifies the boundaries of the Amendment: by looking to history and tradition, rather than contemporary costs and benefits.149 As the Court’s analysis of common use and dangerous and unusual weapons suggests, the relevant history is not simply that of the Founding era, but extends at least through the 1800s.150 Many lower courts have, in the wake of Heller and McDonald, taken a similar approach. In United States v. Rene E.,151 for example, the First Circuit rejected a Second Amendment challenge to the federal ban on juvenile possession of handguns. The court employed a kind of historical analysis, but as Allen Rostron notes, the First Circuit “cited no primary sources from the eighteenth century or even the first half of the nineteenth century, such as laws, judicial decisions, treatises, or other writings, addressing the issue of juvenile access to guns.”152 The court nonetheless found that although the federal law at issue was not enacted until 1994, state laws regulating juvenile possession of guns and other weapons could be found at least as early as the second half of the nineteenth century,153 and that this was sufficient to uphold the federal ban.
The historical record supports a similarly deferential approach to urban gun control. To be sure, the historical evidence is not uniform, nor is the analysis here exhaustive.154 Not every city, nor perhaps even a majority of them, has enacted handgun bans or other stringent gun control. But the geographic differences are nonetheless striking, and the historical evidence is at leastas comprehensive and longstanding as that supporting other Second Amendment rules like the felon carve-out.155
This geographic variation, and specifically the urban/rural divide, predates the Second Amendment itself. As early as the 1300s, London’s statutes provided that no person shall “be found going or wandering about the Streets . . . after Curfew tolled . . . with Sword or Buckler, or other Arms for doing Mischief . . . nor in any other Manner, unless he be a great Man or other lawful Person of good repute, or their certain Messenger, having their Warrants to go from one to another, with Lantern in hand.”156 The oft-cited Statute of Northampton, enacted in 1328, provided that “no Man great nor small, of what Condition soever he be,” shall “ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King’s pleasure.”157 Precisely what the Statute of Northampton prohibited is a matter of debate. Some conclude that it banned armed travel,158 while others say it “was understood by the Framers as covering only those circumstances where carrying arms was unusual and therefore terrifying.”159 Under either of these readings, however, the statute was geographically contextual and tailored to public places like “Fairs” and “Markets.”
Many local regulations at the time echoed the Statute of Northampton’s focus on weapons possession in populated areas. For example, another fourteenth-century London law proclaimed that “no stranger or privy person, save those deputed to keep the peace, shall go armed therein after they shall come to their lodgings.”160 That law’s fifteenth-century successor “forb[ade] any man of whatsoever estate or condition to go armed within the city and suburbs, or any except lords, knights and esquires with a sword.”161 Blackstone himself explained, by analogy to urban prohibitions in ancient Greece:
The offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, upon pain of forfeiture of the arms, and imprisonment during the king’s pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armour.162
Echoes of the Statute of Northampton could be heard in colonial America,163 and urban tailoring also seems to have been embedded in Anglo-American common law rules that treated arms-bearing differently in urban and rural areas. As Saul Cornell explains:
The nature of the common law provided considerable flexibility in deciding exactly what constituted an affray. . . . A party of men hunting in season in Pennsylvania would not under most circumstances have been viewed as committing an affray, while an armed assembly riding into town might well be viewed as such and could be legally disarmed by a justice of the peace.164
Once again, the city line appears to have made the difference.
Perhaps even more notable (because they earned the attention of the Justices in Heller165) were laws regulating the use of weapons and storage of gunpowder in urban areas. As Cornell and Nathan DeDino note, some “[s]tates prohibited the use of firearms on certain occasions and in certain locations”166—with, in some instances, the city limits defining those locations.167 Such laws were enacted in growing population centers such as Boston,168 Philadelphia,169 and New York City,170 and governed private homes as well as public storage. Boston, for example, provided that “the depositing of loaded Arms in the Houses of the Town of Boston, is dangerous” and that no loaded firearms were allowed in any “Dwelling-House, Stable, Barn, Out-house, Store, Ware-house, Shop or other Building.”171 The prevalence of these laws is especially notable—and, incidentally, the historical-categorical test all the more difficult to satisfy—because gun violence simply was not the problem then that it would later become. Jack Rakove points out that “because eighteenth-century firearms were not nearly as lethal as those available today, we similarly cannot expect the discussants of the late 1780s to have cast their comments about keeping and bearing arms in the same terms that we would.”172
Safe storage laws also applied to commercial enterprises handling gunpowder within cities. Cornell and DeDino note that “New York City required ships to unload gunpowder at a magazine within twenty-four hours of arrival in the harbor and before the ship ‘hawl[ed] along side of any wharf, pier or key within the city,’” while “Boston subjected any ‘Gun Powder . . . kept on board any ship or other vessel laying to, or grounded at any wharf within the port of Boston’ to confiscation.”173
Regional variation was already becoming apparent,174 but gunpowder restrictions applied in towns of all sizes, not simply the big three of Boston, New York, and Philadelphia.175 The Pennsylvania statutes establishing the town of Carlisle, for example, provided that anyone keeping gunpowder “in any house, shop, cellar, store or other place, within said borough” must store it “in the highest story of the house . . . unless it be at least fifty yards from any dwelling-house.”176 Other forms of gun control were similarly thought permissible at the local level. Many states—Florida, New Jersey, Nebraska, and Tennessee among them—gave some newly incorporated towns the power to “restrain and punish . . . shooting and carrying guns, and enact penalties and enforce the same” consistent with the constitution and laws of the state.177 Cleveland similarly passed an ordinance prohibiting the discharge of firearms in the city.178 These laws were not merely artifacts of the Founding era, but would remain common even in the years following the ratification of the Fourteenth Amendment.179
It might be tempting to dismiss these laws as products of the distinct and unrepresentative cultural values of “coastal states and cities.”180 But the urban/rural divide appears to have been even morepronounced out West. As noted in the Introduction, even the towns most associated with gun violence—Dodge City and Tombstone, for example—required people to leave their weapons at the city limits when arriving in town.181 Indeed, many frontier towns passed “blanket ordinances against the carrying of arms by anyone,” and the “carrying of dangerous weapons of any type, concealed or otherwise, by persons other than law enforcement officers” was generally forbidden.182 Pointing to these prohibitions,183 historian Garry Wills concludes that “[t]he West was not settled by the gun but by gun-control laws.”184
Wills’s use of the word “settled”is significant, for guns were far more prevalent, and far less regulated, outside of settlements. As Adam Winkler describes:
Guns were widespread on the frontier, but so was gun regulation. Almost everyone carried firearms in the untamed wilderness, which was full of dangerous Natives, outlaws, and bears. In the frontier towns, however, where people lived and businesses operated, the law often forbade people from toting their guns around.185
The ghosts of those “Natives, outlaws, and bears” shuffled through the Supreme Court during Heller’soral argument, as Justice Kennedy invoked the “the right of people living in the wilderness to protect themselves” and of “the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that.”186 This might well be an accurate portrait of the “remote settler” in the “wilderness,” but the use of guns was heavily circumscribed in towns. If the former is significant enough to shape the meaning of the Second Amendment, then the latter should be as well.
Of course, how well these laws were enforced and whether they were effective is difficult to say, and it is all but impossible to know precisely how prevalent they were. David Courtwright writes that “[t]he gun laws were a good idea but poorly enforced, especially during the 1870s, the worst decade of killing on the cattle frontier.”187 On the other hand, Robert Dykstra describes instances of zealous enforcement of urban gun control laws in the West,188 and Robert Spitzer similarly concludes that “[e]ven in the most violence-prone towns, the western cattle towns, vigilantism and lawlessness were only briefly tolerated. . . . Prohibitions against carrying guns were strictly enforced, and there were few homicides.”189 Indeed, Courtwright himself notes that “[t]he situation changed in the 1880s and 1890s. As the threat of Indians and outlaws receded and the regular police system gradually became more professional and efficient, it was harder to justify carrying personal weapons for self-defense.”190 In other words, as functioning towns emerged from the frontier, the need and tolerance for private gun use decreased. This was reflected in law, as some states made it illegal to fire weapons within the limits of a city or town—this was true during the colonial era,191 between the colonial era and the passage of the Fourteenth Amendment,192 and again after.193 Some of these laws were extremelyspecific about their geographic reach. One 1866 Texas statute, for example, provided in part:
It shall not be lawful for any person to discharge any gun, pistol, or fire arms of any description whatever, on, or across any public square, street, or alley, in any city or town in this State; Provided, this Act shall not be so construed as to apply to the “outer town,” or suburbs, of any city or town.194
Other laws flatly prohibited the carrying of nearly any weapon within towns, cities, villages, and settlements.195
Urban gun control was thus a nationwide phenomenon, reaching from the harbors of Boston to the dusty streets of Tombstone, and it took many forms. Important changes were on the horizon, including the professionalization and arming of urban police forces196 and the passage of the first major federalgun control laws in the 1930s,197 but gun control has remained consistently stronger and more stringent in cities and towns than in rural areas. In 1976, Washington, D.C., passed its handgun ban, which would later be struck down in Heller.198 In 1981, local gun control gained national attention when the Village of Morton Grove, Illinois, passed its own local handgun ban.199 The ordinance survived a Second Amendment challenge,200 but inspired a political backlash that helped lead to the passage of preemption laws in dozens of states.201
Heller’s historical-categorical approach has been heavily criticized,202 and this brief discussion cannot fully iron out its wrinkles. Nor does the evidence presented here demonstrate a unanimous or unbroken tradition of urban gun control. The historical record is too spotty for that, but it is as at least as strong as the historical evidence the Supreme Court found sufficient to support specific carve-outs such as the felon-in-possession ban. It demonstrates that local tailoring of the right to keep and bear arms has been significant and historically consistent. Building on that evidence, the argument here is modest: to the degree Heller makes such history relevant, the Second Amendment can and should incorporate it.
B. The Pragmatic-Balancing Approach to Second Amendment Localism
Dissenting in both Heller and McDonald, Justice Breyer did not discount the importance of the kind of historical analysis set out above. But, he concluded in Heller, determining whether a particular gun control law is constitutional requires a sensitive weighing of “practicalities, the statute’s rationale, the problems that called it into being, its relation to those objectives—in a word, the details.”203 Rather than focusing exclusively on historical analogues of modern gun control laws, Justice Breyer endorsed an interest-balancing inquiry, “with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.”204 In doing so, he noted that urban areas “have different experiences with gun-related death, injury, and crime than do less densely populated rural areas” and that “the linkage of handguns to firearms deaths and injuries appears to be much stronger in urban than in rural areas.”205 He argued that “any self-defense interest at the time of the framing could not have focused exclusively upon urban-crime-related dangers.”206 Though other elements of Justice Breyer’s dissenting opinion seem to have prevailed in the approaches actually used by lower courts,207 his emphasis on urban problems has not. This Section argues that it can and should.
Justice Breyer’s effort to take account of how well a gun control law serves particular government interests can be thought of as a “balancing” test,208 and is essentially a form of means-end scrutiny. The traditional tiers of scrutiny all involve some degree of interest-balancing,209 as does the “reasonable regulation” test that state courts have overwhelmingly applied to state-level constitutional guarantees of the right to keep and bear arms.210 Such an approach incorporates some degree of deference to legislatures, which, as Justice Breyer put it, “have primary responsibility for drawing policy conclusions from empirical fact.”211
It is easy to see how the pragmatic-balancing approach could incorporate the urban/rural divide. As noted above,212 the costs of gun violence and the government interest in preventing it are generally higher in urban areas than in rural areas.213 This is partly the result of poverty, gangs, and the “ecology of violence” they create.214 Other unavoidable characteristics of urban life—higher population density, for example—increase gun-related risks. Stray bullets are more likely to hit a bystander where there are more bystanders to hit. Indeed, proximity to individuals acquiring firearms is inversely correlated with feelings of safety,215 and densely populated urban areas obviously involve greater proximity to other people, including those acquiring firearms. Whatever the root causes of urban gun violence, gun control is more likely to be constitutional in cities than in rural areas, since the problems it addresses are especially prevalent in the former.
One might say in response that the balancing approach requires (and perhaps permits) no local tailoring for the simple reason that the approach itself will capture any relevant geographic variations. If a particular urban area faces a genuine problem with gun violence and can demonstrate the strength of its interest in gun control, then the test will take account of that without giving any separateweight to the jurisdiction’s urban-ness. Indeed, urban tailoring might often be the result of balancing rather than a component of it. But balancing need not be entirely ad hoc; balancers often develop and employ heuristics to reflect the wisdom of prior balancing.216 The city limits can be one such guide.
The distinction between historical categoricalism and pragmatic balancing should not be overstated—in practice, the two approaches seem to have merged in various ways.217 As Allen Rostron notes, “Without clear or complete guidance from the Supreme Court, lower court judges have proposed an array of different approaches and formulations, producing a ‘morass of conflicting lower court opinions’ regarding the proper analysis to apply.”218 There seems to be general agreement that “historical meaning enjoys a privileged interpretative role in the Second Amendment context.”219 But precisely whatthat role should be is a matter of more robust debate.220 For example, one might conclude that the historical tradition of gun control suggests the constitutional relevance of an urban/rural distinction, and that the pragmatic balancing approach provides a mechanism with which to apply it.
III. constitutional and statutory localism
The arguments thus far have been largely internal to the Second Amendment. But firearm localism has implications for—and draws support from—broader developments and arguments in constitutional law. It also provides strong historical and normative support for the revision or repeal of strict state laws preempting local gun regulation. Such laws not only represent a break from our longstanding tradition of firearm localism, they unnecessarily prevent urban areas from addressing their unique problems of gun violence. This final Part considers both the federal constitutional backdrop and the state statutory foreground.
A. Localism and Constitutional Rights
It is often said that incorporated constitutional rights apply identically to all levels of government.221 In McDonald itself, the Court rejected the argument that state gun regulations might be subject to a more forgiving standard of scrutiny,222 concluding that its jurisprudence “decisively” creates a “well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.”223 But despite the frequency with which it is invoked, the supposed rule of uniformity is neither universally applicable nor universally desirable. For all the reasons discussed above, the Second Amendment presents a particularly strong case for advocates of constitutional localism, and simultaneously draws strength from that broader framework.
Mark Rosen has provided perhaps the most extensive support for the argument that “geographic nonuniformity of constitutional requirements and proscriptions is a mainstay of American constitutionalism.”224 He notes that “constitutional rights are defined in part on the basis of community expectations and considerations”225 and that “[t]he most fundamental lesson is that courts already possess doctrinal tools for accommodating idiosyncratic but valuable communities.”226 Perhaps the most prominent doctrinal example—which, as explained below, may have particular salience for the Second Amendment227—is the First Amendment’s treatment of obscenity. Under longstanding free speech doctrine, obscene materials are said to fall outside the boundaries of constitutional protection.228 The definitionof obscenity, however, incorporates “community standards.”229 And those standards are notnational, nor even state, but local—a “juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes.”230 The Court has emphasized that “[i]t is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”231
Some other federally guaranteed rights manifest themselves differently in different places. For example, the “property” protected by the Due Process and Takings Clauses is a product of subnational law. Indeed, such constitutionally protected entitlements are “‘not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .’”232 Whether these state-created interests “rise to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause” is a question of federal constitutional law.233 In Town of Castle Rock, Colorado v. Gonzales, for example, the Court considered whether a person had a property interest in police enforcement of a restraining order against her husband.234 Resolution of that issue, the Court recognized, “begins . . . with a determination of what it is that state law provides. In the context of the present case, the central state-law question is whether Colorado law gave respondent a right to police enforcement of the restraining order.”235 The Court concluded that it did not. But in another state, with different laws, the federal claim could have prevailed.
Other examples of geographically dependent tailoring incorporate more directly the kinds of interest-balancing described in Section I.C. Time, place, and manner restrictions, for example, are geographically tailored, and speech can also be broadly regulated in particular areas such as schools,236 airports,237 and military bases,238 which might well be the kinds of locations Justice Scalia had in mind when he said that the Second Amendment permits the regulation of guns in “sensitive places.”239
Each of these examples can be explained based on considerations specific to the right at issue, but they are also buttressed by strong arguments for localism itself—arguments that are not limited to any particular constitutional right. As David Barron explains:
There is a value in ensuring that local jurisdictions have the discretion to make the decisions that their residents wish them to make. The value inheres in the traditional advantages that attend decentralization. These include more participatory and responsive government; more diversity of policy experimentation; more flexibility in responding to changing circumstances; and more diffusion of governmental power, which in turn checks tyranny.240
These values appeal to a broad audience241and represent a “striking harmonization of the otherwise divergent values of the free market, civic republicanism and critical legal studies.”242 The benefits of local expertise can be considerable, particularly with regard to issues of public safety243 and where a community is able to internalize both the costs and the benefits of a particular restriction.244 For these reasons and others, many Justices have, at various times, specifically endorsed the idea that constitutional rights should apply differently to different levels of government.245
On some level, this can be reconciled with the one-size-fits-all principle stated in McDonald. Local tailoring of constitutional rights does not necessarily mean creating separate rights, at least not any more than the various rules governing speech regulations in public parks,246 military bases,247 and schools248 indicate a multiplicity of First Amendment rights. The interpretation-construction distinction endorsed by some constitutional scholars provides further support for this conclusion. It is premised on the notion that there is a difference between the semantic meaning of a constitutional provision and the constitutional doctrine constructed to implement it.249 On this reading, the meaning of the Second Amendment can be consistent throughout the country (a product of interpretation), even as the doctrine applying it varies locally (a function of construction). Lawrence Solum, a chief proponent of the interpretation-construction distinction, similarly points out that the meaning of the First Amendment says nothing about “time, place, and manner” doctrine.250 The latter is a matter of construction rather than interpretation, and the restrictions it permits vary geographically.
Just as local tailoring of constitutional doctrine would not necessarily create a multiplicity of constitutional meanings, neither would it permit local governments to pass whatever gun control they please. Precisely defining the range of permissible local variation is impossible, because Second Amendment doctrine itself is still in flux, but tailoring would operate only at the margins. City-wide handgun bans will almost certainly be found unconstitutional, as they were in Heller. And yet gun prohibitions are presumptively permissible in “sensitive places” like government buildings and schools—a form of micro-level local tailoring. Determining where a particular local gun law (a permit requirement, for example, or a ban on concealed carrying) falls on this spectrum of permissibility will depend on the relevant history, the governmental interests involved, and the degree to which private interests are burdened. The local nature of the action would simply be an additional factor to consider.
There are, of course, problems with constitutional localism in general, and with firearm localism in particular. Section III.C will address the latter. As to the former, any kind of localism carries with it the political risks familiar to students of federalism. As James Madison noted, “[a]mong the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.”251 Heather Gerken explains:
The nationalists’ objection to conventional federalism typically takes one of two forms. The first is a worry that local power is a threat to minority rights. The second is a related concern about what we might loosely analogize to the principal-agent problem—the fear that state decisions that fly in the face of deeply held national norms will be insulated from reversal. Both find their strongest examples in the tragic history of slavery and Jim Crow.252
That tragic history includes efforts to render African-Americans defenseless by denying them the right to keep and bear arms.253 How, in light of that risk, can there be any allure in firearm localism?
Part of the answer lies in the comparative ease with which local decisions that “fly in the face” of national or state norms can be reversed. From the perspective of the Federal Constitution, cities are creatures of state law, and their decisions can generally be overturned at the state level.254 Indeed, state preemption laws do exactly this (though, as I argue below,255 they go too far in doing so). Moreover, as David Barron notes, “there is little risk that a city will remain a scofflaw for long. The fact that cities are not fully sovereign means that municipal taxpayers enjoy relaxed standing requirements in suits against their cities for disobeying the law.”256 Even holding aside the ability of states or litigants to check localized tyranny, “[s]ome have argued, in fact, that local political processes are less susceptible to capture by special interests” than larger governmental units since it is easier for people to exit local governments.257 As Robert Cooter notes, “[t]he ‘exit principle’ implies the ‘federalism of individual rights,’ by which I mean that courts should tolerate more interference with individual liberty when the effects are localized.”258 Judge J. Harvie Wilkinson III pointed out in his criticism of Heller that citizens who oppose gun control “remain free to move to other localities more protective of gun rights.”259
And even if such local variation cannot totally be erased by state governments, its persistence might not necessarily be a bad thing. As Gerken and others have shown, local governments and political minorities who resist broader norms can protect minority voices while facilitating broader democratic engagement.260 Local experimentation with gun control has sometimes been motivated by those very goals. The city council members who enacted Washington’s handgun ban “thought the D.C. law would spark a nationwide trend to ban all handguns in America—if not all guns period.”261 Similarly, one of the trustees who voted for Morton Grove’s handgun ban told a reporter, “We felt gun control would have to be a grass-roots effort, as with child labor and pollution laws, and wanted to send a message to other villages and towns that they could enact such ordinances.”262 There is some reason to think that this signaling was effective,263 even though it eventually served as a greater inspiration to opponents of gun control than to its supporters.264
Sometimes these urban gun control efforts have inspired broader political support. In the late 1990s, for example, the city of Richmond initiated Project Exile, which earned the rare simultaneous approval of the NRA and the Bureau of Alcohol, Tobacco, and Firearms. The project brought state and federal prosecutors together to maximize the sentences of anyone using a gun to commit a crime in the city.265 The success of Project Exile has been debated,266 but for present purposes what matters most is that it was locally focused but nationally prominent. Targeted programs in Kansas City267 inspired similar patrols in New York,268 and available data suggests that “stringent regulation of concealable weapons played an important role in driving down the rate of violent crime” in New York.269 Similarly, the lauded Boston Gun Project “included an interagency problem-solving group that sought to disrupt the illegal supply of firearms to youth” through various systematic efforts.270 The Boston and Richmond programs, in turn, served as models for the Bush Administration’s Project Safe Neighborhoods, which encouraged federal-local partnerships in combating gun crime.271 These partnerships and policy innovations would not have been possible without pioneering local governments taking the first step.
The extent of local tailoring in current constitutional law should not be overstated—there is a general presumption in favor of national uniformity, and the reasons for diverging from that uniformity are always specific to the right involved. Firearm localism would operate at the margins of the right to keep and bear arms, and for reasons that are specific to the right itself. Indeed, our long national tradition of local variation in gun control demonstrates—even before Heller—that prohibitionist gun control is not only constitutionally constrained, but politically unlikely.272 The preceding Sections have argued that the Second Amendment is particularly well suited for local tailoring. The goal of this Section has been to situate that argument in a broader constitutional context.
B. Against Preemption
This Article’s argument is primarily constitutional: that Second Amendment doctrine can and should be tailored to better reflect the urban/rural divide. As a practical matter, however, the biggest legal obstacles to firearm localism are not to be found in the Federal Constitution, but in state statutes—specifically, in preemption laws that prohibit or sharply limit local gun control. Although these laws do not undermine the constitutional argument for firearm localism, they should nonetheless be repealed or revised in light of the historical, cultural, and pragmatic case for localism.
Though local autonomy with regard to gun regulation was the norm throughout most of American history,273 the past three decades have seen a dramatic change.274 Prompted in part by the passage of a handgun ban in Morton Grove, Illinois, in 1981, the NRA and other gun rights organizations began pushing for state-level preemption laws that would forbid local governments from enacting certain kinds of gun control.275 Though it broke with the tradition of local governance described above (and endorsed elsewhere by the NRA)276 the preemption campaign was incredibly successful.277 As of 2002, forty-one states had preempted some or all local gun control,278 thereby reducing the stringency, scope, and variety of local gun regulations. As the former leader of a national gun control organization put it: “There’s no question that the NRA’s effort to pass preemption laws was a serious setback, and there’s no question that whatever the implications in terms of policy, what you do lose at the local level is the ability to rally people around a local issue . . . .”279
State preemption laws have important implications for firearm localism, and vice versa. First, by making local gun control laws harder to pass as a political matter, and barring many of them as a legal matter, preemption statutes narrow the potential scope of this Article’s argument—the less local gun control there is, the less relevant firearm localism will be. But the existence of these laws does not impact the strength of the Article’s argument in favor of constitutional deference to urban gun regulation. Whether that deference is justified is not dependent on how often it might be invoked. Indeed, those who fear that firearm localism would weaken gun rights might take heart from the fact that states can actively check local regulations that go too far.280
Second, and despite the obstacles presented by preemption laws, firearm localism remains enormously significant even under the current legal regime. The vast majority of gun control laws are still local,281 and some of those laws cover municipalities that are more populous than many states. Moreover, many states with preemption laws have specific statutory exceptions for certain kinds of gun control.282 And in the eight states with no (or limited) preemption laws, local governments are freer to regulate, subject to constitutional constraints. These are precisely the states where local gun control is most likely to be passed in any event.283
Third, many of the arguments in favor of preemption laws have been substantially mooted. Heller and McDonald constitutionally prohibit the kinds of handgun bans and other especially stringent gun control that proponents of preemption laws sought to prevent at the local level.284 Since those laws are now unconstitutional, there is no need for preemption laws to prevent them. And while it may not be politically realistic to expect, Heller and McDonald should give members of the gun culture “less reason to fear creeping confiscation.”285 This in turn should lessen the impact of the “slippery-slope arguments [that] play a large role in anti-gun-control rhetoric,”286 and permit “sensible gun control laws—those aimed at disarming criminals, not ordinary citizens—[to] pass much more easily.”287 Moreover, a locally tailored Second Amendment doctrine would permit courts to uphold “reasonable firearms regulations”288 in cities without diluting the rights of rural residents.289 Focusing energy on urban areas, where the costs of gun violence and support for gun control are highest, might give gun control advocates a shot at incremental policy victories that have proven elusive at the state and national levels.290
One might respond that states are still the best political unit to make these decisions, and that urban and rural residents should hash out their differences in state legislatures. But, for all the reasons discussed in Part I, state-level negotiations are unlikely to achieve a satisfying accommodation.291 As James Jacobs puts it, “[t]he idea that gun crime in our inner cities (much of which takes place among drug dealers and gang members with significant criminal records) will be significantly reduced by taking guns away from ranchers, farmers, small town residents and suburbanites is, to say the least, a hard sell.”292 The converse is equally true: it is a “hard sell” to tell inner cities that they must permit “drug dealer gang members” to possess cheap handguns so that ranchers, farmers, and small town residents can have hunting rifles.293
A complete analysis of state preemption laws would require the weighing of policy considerations that are beyond the scope of this Article. Supporters of preemption emphasize the difficulty of complying with different local gun regulations,294 especially when transporting their firearms from one lawful place to another—from home to a shooting range, for example. Opponents of preemption respond that such costs of compliance are commonplace and unobjectionable, particularly when the relevant rules address local safety concerns—rules governing traffic and speed limits, the sale and consumption of alcohol, and others that vary widely from one city to the next. Striking a proper balance between the values of uniformity and local variation requires a nuanced consideration of specific gun regulations. However that balance should be struck, today’s broad preemption laws go too far in preventing the kind of localized gun control that was the norm for most of American history. They should be revised or repealed in order to permit firearm localism, for all the same reasons that Second Amendment doctrine should be tailored to allow it.
C. Objections and Answers
None of the foregoing analysis provides an open-and-shut case for firearm localism, even at a broad conceptual level.295 Many potential objections have been noted along the way. This final Section attempts to identify and answer a few more.
First, one might object that a Second Amendment doctrine that dilutes the rights of city-dwellers—especially those in high-crime areas—would effectively deny guns to the very people who need them the most. This objection is hard to answer because it is premised on disputed empirical suppositions. For although urban gun control might limit the possibilities for armed self-defense, one of its primary purposes is to lessen the need for such self-defense. A local legislature that passes a particular gun control measure has presumably concluded that the measure will save lives, and while that determination is not immune to judicial evaluation, it is the kind of empirical determination that generally receives deference from the courts.296 This Article takes no position on whether cities are better off with or without restrictive gun control. The constitutionalquestion is to what degree they even have the option to employ it. And the fact that gun control would inevitably limit access to armed self-defense does not mean it is unconstitutional.297
A second objection might be that firearm localism would be very difficult to implement in practice. As David Barron notes, “[N]o city or state is an island jurisdiction. The ability of each locality to make effective decisions on its own is inevitably shaped by its relation to other cities and states . . . and, most importantly, by the way the central power structures these relations . . . .”298 This is powerfully true with regard to guns. In his skeptical account of the effectiveness of gun control, James Jacobs notes that “[s]ome communities wishing to ban private possession of firearms in public places . . . will find their ambition undermined by a neighboring community’s policy of allowing liberal access to firearms.”299 Studies have unsurprisingly shown that many guns found in areas with restrictive gun control were purchased elsewhere.300
Of course, evaluating the efficacy of policy matters is traditionally entrusted to legislative bodies, not to courts, so the argument that gun control would not work is at best a partial argument against its feasibility. Even so, it is worth noting some empirical evidence suggesting that local-level gun control can make a difference, even in urban jurisdictions surrounded by areas with lax gun control. One study concluded that when Washington, D.C., passed its gun control law in 1976, homicides and suicides declined by approximately 25%, thanks in large part to a decline in firearm killings.301 Though not every effort to reduce gun crime will be successful—crime control is and has always been imperfect—other studies have also found encouraging results.302
A third objection lies in the definition of “urban” and “rural.” Those are very broad terms, and their precise contours are and will surely remain the subject of much debate. The resulting imprecision and decision costs could be a reason to avoid relying on them in the first place. How, for example, can firearm localism account for the suburbs, which may form independent municipalities but do not fit neatly into the division between urban centers and rural areas?
This definitional obstacle is not insurmountable. After all, social scientists who study urban issues have developed tools to define and guide their craft.303 In the specific context of gun violence, for example, scholars have looked to “the sixty-seven U.S. cities with a population of at least 250,000 people as of the 2000 census,”304 or to Metropolitan or Micropolitan Statistical Areas, which are both defined by the Office of Management and Budget as “a core area containing a substantial population nucleus, together with adjacent communities having a high degree of economic and social integration with that core.”305 Some “suburbs” meet that definition, and they seem to reflect urban gun control values more closely than rural ones.306 A 2011 Gallup poll found that 43.6% of rural residents reported personally owning a gun, with those numbers dropping progressively from 27.7% to 15.9% to 15.6% in towns and small cities, suburbs, and large cities, respectively.307 Other studies have found that suburbanites more closely resemble city-dwellers than rural residents when it comes to gun ownership308 and views on gun control. Gary Kleck, for example, notes that suburban residents, along with city-dwellers, are more supportive of gun control than their rural counterparts.309 When asked whether it was more important to protect the right to own guns or to control gun ownership, 63% of rural residents chose the former, compared to only 38% of urbanites and 46% of suburbanites.310 This is not to say that the issue is clear-cut, however. Another recent article reported:
As with so many American campaigns these days, the real fight is for the suburbs. Urban dwellers strongly prioritized gun control, 62 percent to 34 percent. Rural residents were aligned with gun rights, 64 percent to 33 percent. In the battleground suburbs, gun control was ranked more important by a thin plurality, 48 percent to 45 percent.311
Firearm localism would not resolve the fight in these battlegrounds. It would, however, enable a more direct focus on it, rather than treating cities, suburbs, and rural areas as identical.
Finally, one might argue that, even if rural and urban can be defined with the requisite precision, these categories do not capture the underlying geographic realities well enough. Even within a city, gun violence might be concentrated in a few particular neighborhoods. It would seem that they, not the city as a whole, should be the focus of the argument for increased gun control deference—firearm localism all the way down, as it were.312 Indeed, part of the effort here is to identify a geographic unit between “sensitive places” like schools or government buildings313 and larger governance units like the state. But as a legal matter, the authority for enacting local gun control resides—if it is not preempted by state law—at the level of the municipality, not the neighborhood, which makes the former the appropriate level of analysis.
Conclusion: Directions For Second Amendment Localism
This Article has argued that Second Amendment doctrine can and should incorporate our long national tradition of locally tailored gun control. Translating that general principle into specific constitutional rules is another matter. In conclusion, however, it may be useful to consider how firearm localism would influence ongoing debates regarding assault weapons and concealed carrying. The purpose of the following is to show how a localized Second Amendment might allow us to ask these questions, not to demonstrate how it would answer them. The latter would, as the discussion shows, require further research.
On December 14, 2012, twenty-six people—twenty of them first-graders—were murdered at Sandy Hook Elementary School in Newtown, Connecticut, by a young man with an assault rifle.314 The subsequent debate about gun control demonstrated the depth of the cultural divide described in Part I of this Article. The NRA, the gun culture’s most prominent and powerful voice, argued that arming teachers would help prevent gun violence in schools.315 Meanwhile, New York Mayor Michael Bloomberg—perhaps the most prominent spokesman for urban gun control culture—demanded new restrictions, saying, “If this moment passes into memory without action from Washington, it will be a stain upon our nation . . . .”316
The most commonly discussed policy solutions have been bans on high-capacity magazines and “assault weapons” such as AR-15s, which were used at Newtown and in other mass murders like the Aurora movie theater and Beltway Sniper killings.317 But the federal assault weapons ban was allowed to expire in 2004 despite broad support,318 and it seems unlikely that Congress will pass another one any time soon.319 Even with the limitations imposed by preemption laws, local action may be the most realistic immediate option for gun control advocates.
How would a localized Second Amendment evaluate the constitutionality of an urban ban on assault weapons or high-capacity magazines? The answer likely lies in one of Heller’s underexplored exceptions to Second Amendment coverage. As noted above, the Court held that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,”320 but did little to explain what kinds of weapons fit within that category.321 A localized Second Amendment would define the term based on localstandards, allowing increased scope for regulation in places—cities, most prominently—where particular types of guns might be considered more uncommon, dangerous, or unusual.
This could happen in at least two ways. First, the Second Amendment might take a page from First Amendment doctrine and use local “community standards”322 to determine whether a particular weapon is dangerous, unusual, or in common use. It would follow that if assault weapons are more uncommon, dangerous, and unusual in cities, then those cities should have more authority than rural areas to ban them. This inquiry would essentially track the pragmatic-balancing approach, at least to the degree that it would incorporate contemporary empirical evidence. It would also be influenced by historical traditions of regulation, however, because one of the major determinants of a gun’s commonality within a jurisdiction is the degree to which it has been regulated in the past. Unfortunately, it is difficult to find accurate statistics regarding the relative prevalence of assault weapons in cities and rural areas, so it is impossible to say with any confidence whether firearm localism would support deference for urban assault weapons bans.323 But if the rates of assault weapon ownership are consistent with those of other guns, they are probably much less common in cities. If so, a localized approach to the Second Amendment would give special support to urban assault weapons bans.
A second way for Second Amendment doctrine to take account of local variation with regard to “dangerous and unusual” weapons would be to look directly to local law, rather than to extra-legal community standards. This would be akin to the way that Fifth and Fourteenth Amendment doctrine do not themselves create “property,” but rather incorporate background sources such as subnational law.324 Local laws could likewise be used as a guide to what guns are dangerous and unusual for constitutional purposes. This approach would be consistent with the historical-categorical approach, especially if it were to give extra weight to “longstanding” local laws.
As noted above, the search for evidence is skewed by the fact that most states preempt some or all local gun control; many cities therefore do not have the powerto ban assault weapons. But some do have that authority, and exercise it. One recent study examined gun control in ten major cities located in states without stringent preemption laws.325 Five of those cities (Boston, Chicago, Cleveland, Columbus, and New York City) ban or heavily regulate assault weapons, while another four are located in states that ban assault weapons (Newark, Hartford, Los Angeles, and San Francisco).326 Five ban large-capacity ammunition magazines (Boston, Chicago, Columbus, New York City, and Los Angeles), and two more (Newark and San Francisco) are located in states that do.327Again, this is imperfect evidence. But it suggests that urbanbans on assault weapons or high-capacity magazines might have a particularly strong claim to constitutionality.
Bans on concealed carrying have traditionally been considered constitutional,328 and they seem to have been particularly common in cities.329 Like the gunpowder restrictions, concealed carry laws were often tailored to heavily populated areas, either in the state laws giving cities and towns the power to restrict concealed carrying (and, sometimes, carrying of any kind),330 or directly in the acts incorporating municipalities.331 As Saul Cornell explains, regulations of concealed carrying were the natural descendants of the urban gunpowder regulations discussed above:
The first laws banning concealed weapons enacted in the period between 1813 and 1859 were essentially time, place, and manner restrictions. . . . Prohibitions on the practice of carrying concealed weapons were little different than laws that established rules about the storage of gunpowder, restricted hunting, or prohibited the discharge of weapons in certain areas.332
Many of these laws were upheld in the face of constitutional challenge, providing unusually good evidence that, as the Supreme Court put it in 1897, “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”333 Even though Heller seemed to reaffirm that holding,334 the constitutionality of concealed carry restrictions has been one of the primary Second Amendment battlefronts in recent years.335 Firearm localism suggests that whenever those cases involve municipal restrictions, extra deference is due. The same might be true of other restrictions on public carrying. In Moore v. Madigan,336the Seventh Circuit struck down Illinois’s statewide ban on public carrying. In doing so, the Court emphasized that the Illinois law was unique,337 and that it curtailed “the gun rights of the entire law-abiding adult population of Illinois.”338 But what if the law had only applied to a particular city,339 or even a part thereof? The historical record, not to mention the cost-benefit analysis, might look significantly different if it focused on the constitutionality of an urban ban.340 This would not necessarily mean that a city could outright prohibit both concealed and open carrying—to do so would effectively limit the Second Amendment to the home341—but it would give additional deference to “good cause” requirements in urban areas.342 In this and other ways, the Second Amendment can preserve our longstanding and sensible tradition of firearm localism.