Why Firearm Federalism Beats Firearm Localism
A Response To
Americans disagree persistently on gun policy, and the disagreement tends to follow geographic and cultural lines.1 Beginning with this premise, Joseph Blocher’s Firearm Localism seeks to articulate one way that courts might use Second Amendment doctrine to mitigate the effects of our disagreement2 and thus offer a “truce” on the gun issue.3
The project merits attention. As I have argued,4 there are two basic ways to conceive of the task of implementing the individual right to keep and bear arms in the wake of District of Columbia v. Heller.5 One can simply be called the human rights approach. It assimilates the Second Amendment to the treatment of most other constitutional liberties: courts impose basic substantive norms against national, state, and municipal governments on a uniform basis, establishing a floor for liberty beneath which regulation cannot descend. This approach underpins the Supreme Court’s decision in McDonald v. Chicago6that the Second Amendment right to keep and bear arms applies fully against state and local governments.7 I continue to believe that it is, on balance, the most appropriate way to implement the right, particularly because of the strong grounding of Heller’s self-defense-based conception of the right to arms in the nineteenth-century background of the Fourteenth Amendment.8 In the half-decade since Heller, scholars following this perspective have offered both relatively broad9 and (particularly in elite law reviews) very narrow10 views of the Second Amendment right.
The other, decentralizing approach envisions using the Constitution to promote autonomy in subnational jurisdictions by subjecting gun controls enacted by larger jurisdictions to more scrutiny than those enacted by smaller jurisdictions. There has been less scholarly discussion of this perspective.11 When Heller was decided, I published an essay exploring the arguments for the decentralizing perspective.12 I concluded: (1) because Americans are divided, nationwide gun restrictions raise special constitutional concerns,13 and (2) to the extent it is proper to allow such concerns to influence constitutional analysis, the primary locus of subnational authority to regulate guns should be the states, not municipalities.14 State firearms preemption statutes, which bar municipalities from adopting piecemeal firearms restrictions, help to preserve the integrity of state approaches to gun policy and uphold the settlement implicit in federalism.15 These statutes, I argued, are not merely consistent with a sound approach to decentralization, but rather form a crucial part of it.
Firearm Localism takes up the decentralizing approach, enriching it with new observations and arguments. Blocher ultimately accepts the first conclusion but not the second. In his view, gun controls enacted by urban municipalities deserve “special deference” in constitutional analysis.16 Broad state preemption laws, which prevent municipalities from adopting additional gun regulations, should be revised or repealed.17
Thus, Blocher and I part ways in answering a critical question: if one seeks decentralization, then what is the lowest appropriate level of government for firearms policy?18
In this response, I defend and extend my position that the right answer is the state—not, as Blocher argues, the municipality. A decentralized firearms policy and gun-rights jurisprudence should take the form of a traditional, state-based federalism, for three reasons. First, firearm localism cannot be justified by a rural-urban divide on attitudes toward hunting, a practice that, although important, is peripheral to current gun control controversies. Second, firearm localism is not supported by traditional judicial approaches to the right to keep and bear arms. Finally, there is a strong pragmatic case against according deference to local firearm regulations. Firearm localism would destroy the compromise benefits of federalism by burdening the exercise of the right to keep and bear arms in ways that gun rights supporters would justifiably view as unacceptable.
I. hunting is (mostly) a red herring; modern gun control efforts target self-defense firearms that urban gun owners value
Firearm Localism begins with a discussion of rural gun culture that touches repeatedly upon the importance of hunting to that culture19 compared to that of urban areas, where hunters are scarce. Blocher is properly cautious in drawing constitutional lessons from this divergence, but it is worth emphasizing the point: a focus on hunting tends to obscure rather than clarify the issues raised by his proposal. It is true that many rural dwellers identify hunting as an important reason why they choose to own guns.20 The right to arms has traditionally been valued, in part, for hunting purposes,21 and I agree with Blocher that hunting arms, as such, deserve “penumbral” protection under the Second Amendment.22 But the central holding of the Supreme Court’s landmark cases is that the Second Amendment protects an “individual right to keep and bear arms for the purpose of self-defense.”23 Personal defense, not hunting, is the right’s “core lawful purpose.”24
Furthermore, the most divisive gun control controversies today do not arise from the practice of hunting, and they are not directed at traditional hunting weapons.25 Rather, attempts at prohibition focus on self-defense guns that are useful in a conflict, particularly semiautomatic handguns and rifles (and their magazines),26 some of which are produced and sold in very large numbers in the United States.27 The restrictive handgun carrying laws of some coastal municipalities28 are another major Second Amendment battleground: again, these laws impinge directly on the defensive use of guns, but have little to do with hunting or sporting uses. Such regulation is more likely to collide with the priorities of urban gun owners than of rural ones.Urbanites are more likely than rural owners to acquire their guns for the constitutionally central purpose of self-defense,29 and there is evidence that the types of firearms urban dwellers favor are precisely the kinds of defensive firearms targeted by current gun control efforts.30
II. historical applications of the right to bear arms to gun carrying laws reflect a different spirit from contemporary urban gun control
Firearm Localism seeks to build a historical-traditional case for “broad leeway to urban gun control,”31 and amasses a lengthy list of local or municipal gun restrictions from the Founding era and the nineteenth century.32 However, many of the prohibitions Blocher lists were simply general prohibitions on discharging firearms in settled areas. Such prohibitions are commonplace today, including in areas that are quite protective of gun rights.33 But for that very reason, they do not advance Blocher’s argument. These are laws about, for example, target practice; they are not relevant to whether urban areas were historically considered to have special leeway to restrict the right to own and use arms for self-defense. They would only shed light on that question if we had evidence that the prohibitions on discharging firearms did not include the ordinary implied exceptions to criminal statutes that allow individuals to engage in the restricted conduct (here, the discharge of their firearms) in cases of necessary self-defense.34
Like the Heller majority,35 I believe the historical record teaches a different lesson, particularly when one keeps the focus where it belongs: on the judicial review of laws that impair the use and carrying of weapons for self-defense. Before Heller, enforcement of the right to keep and bear arms was largely left to state courts, which have been adjudicating individual right-to-arms claims since the 1820s.36Blocher compiles various historical restrictions on gun carrying in or near American towns and cities,37 and unlike laws governing the storage of kegs of gunpowder, or the wanton firing of guns on holidays, these examples really do constitute potential evidence for his claims. It is notable, however, that many were territorial laws that preceded statehood. For example, Blocher cites an 1888 law that prohibited “carry[ing] . . . any . . . pistol, gun or other deadly weapons, within the limits or confines of any city, town or village or in any public assembly of Idaho Territory”38 as evidence of deference to urban gun restrictions. But following statehood, this territorial-era prohibition was struck down by the Idaho Supreme Court as a violation of both the Second Amendment and the Idaho Constitution’s right to bear arms.39 In fact, the court specifically considered and rejected the firearm localist argument that a law restricting the carrying of handguns for self-defense could be saved from invalidation on the ground that it applied only to urban areas:
Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. . . . [T]he statute in question does not prohibit the carrying of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void.40
Throughout the next century, courts regularly scrutinized municipal prohibitions on gun carrying for self-defense, and not infrequently struck them down.41 The case law tradition reflects no pattern of special deference to local enactments. To the contrary, municipal and local restrictions on handgun carrying are among the types of law that have most often been held to violate constitutional provisions securing an individual right to bear arms.
The Idaho court’s words above also reveal another way in which the American tradition conflicts with Blocher’s argument for deference to contemporary urban sensibilities. That is the courts’ treatment of regulations of the mode in which handguns can be carried. One author recently opined that today there is “no clearer picture of the cultural divide around the Second Amendment” than the “jarring” practice of the “open wearing of firearms on the streets of a modern American city.”42 Yet the judicial record reflects a very different view. Historically, the most common approach of American courts has been to privilege the open carry of defensive weapons (such as by wearing them visibly holstered on one’s belt), while taking a skeptical or hostile attitude to the carrying of weapons in a less conspicuous, concealed manner.43 The locus classicus is State v. Chandler,44an 1850 Louisiana Supreme Court decision cited repeatedly by the U.S. Supreme Court in Heller.45 Chandler turned aside a constitutional challenge to a conviction for carry of a concealed pistol, reasoning that although the Second Amendment does protect defensive weapons carrying, it encompasses only open carry, not the practice for which the defendant had been convicted:
[The statute responds to] the habit of carrying concealed weapons[.] . . . It interfere[s] with no man’s right to carry arms . . . “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.46
Heller approvingly cited this line of authority and suggested that prohibitions on concealed carry might be constitutional.47 I acknowledge that it is fairly debatable whether this passage from Heller ought to be read as categorically excluding concealed carry (so that only openly carrying handguns would fall within the scope of the Second Amendment right), or, in a more pragmatic fashion, as simply authorizing governments to choose between open and concealed carry, prohibiting either mode as long as the other mode remains available and effective.48 Yet some lower courts have indeed suggested post-Heller that the right is scope-limited to open carry.49 What we can say with certainty is that the case law tradition does not support a special deference to (what some identify as) contemporary urban sensibilities about gun carrying. It would be easier to argue that it supports the opposite attitude.
Today, the most serious pragmatic objection to firearm localism is that it would tend to destroy the conflict-management benefits that were supposed to be a major advantage of decentralization. Federalism promises to increase overall preference satisfaction on divisive issues by allowing individuals to satisfy different preferences by living in different subnational jurisdictions.50 But for this kind of settlement to work, jurisdictions must be large enough to live in—that is, large enough to coherently embody different policy options as a lived possibility.
That poses a problem for firearm localism, because most Americans are commuters. Their daily lives are geographically localized, but only somewhat so. An average American of driving age drives thousands of miles per year,51 and regularly eats away from home, often several times per week.52 Work patterns tell a similar story: the average American’s commute to work is nearly a half hour each way,53 and more than a quarter of Americans routinely travel outside of their home county for work.54 Major government offices and other public institutions are also often concentrated in urban centers; rural dwellers are required to travel through the state to interact with them. In sum, the experience of a few coastal cities, where an individual may live, work, recreate, and engage in civic activity, all within the confines of a single municipality, is atypical. In most of the country, a simple trip to visit friends, to shop at the mall, to eat dinner, or to practice at an outdoor gun range will often require crossing county and municipal boundaries. Citizens who take seriously the right to bear arms for self-defense will understandably reason that this fundamental interest should follow them in their ordinary activities: “self-defense has to take place wherever [a] person happens to be.”55
If one accepts a right to bear arms for self-defense of even moderate breadth, it follows that citizens will not be able to exercise that right effectively when they face a patchwork of conflicting municipal regulations—even if no particular municipal regulation would be clearly objectionable when considered in isolation. The Supreme Court has observed in another constitutional context that “[p]rolix laws chill [protected conduct] for the same reason that vague laws chill [protected conduct]: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’”56 Replacing a single, statewide body of regulation with potentially hundreds of municipal regulatory codes can be viewed as introducing a similarly harmful prolixity. And this has important costs, since most violent crimes occur away from the home and its curtilage—including the kinds of serious violent crimes against which one may typically lawfully defend with a firearm or other potentially lethal weapon.57
Statewide firearms58 preemption laws thus prevent chilling effects on the exercise of the right to arms—and particularly the right to bear arms outside the home—by ensuring that individuals can deal with a single, relatively predictable set of statewide regulations as they carry out their activities.59
Consider Ohio. This geographically typical American state is comparable in size to many nation-states; Ohio’s total area is a bit larger than Austria and Belgium combined. But Ohio includes eighty-eight counties and over nine hundred different incorporated cities and towns.60 Thus, for an Ohioan, the difference between preemption-backed firearm federalism and Blocher’s firearm localism represents a thousandfold increase in the number of regulatory authorities with jurisdiction over gun policy. This huge difference of degree gives localism a qualitatively different character from federalism.
Blocher closes by discussing how his brand of firearm localism might apply to handgun carrying. This subject is already extensively regulated by most state governments, typically through a “shall issue” carry permit system.61 Blocher suggests that municipalities should be able to supersede state choices on the permissible mode of carry (open versus concealed), and even that municipalities should be able to insist on a “may issue” permit, available only at the discretion of local authorities, to bear arms within each municipality’s boundaries.62 If Blocher is right about the salience of the urban/rural cultural divide on guns, then we might expect that many municipalities will exercise this regulatory prerogative, even in “pro-gun” states. Such laws often carry substantial criminal penalties.63 The iterated effect of such shifting requirements, on a typical “shall issue” permittee passing through several municipalities en route to a destination, would be a virtually insurmountable burden to the exercise of the right. That prospect is enough to profoundly undermine the mitigation of social conflict we might otherwise expect from decentralization.
B. Traditional Concepts of State Sovereignty Apply with Particular Strength to Gun Rights and Gun Policy
I have focused on pragmatic difficulties with firearm localism, but that is not because I discount traditional, formal arguments for state priority. Firearm Localism fits naturally with a localist strand in the recent federalism literature that seeks to downplay traditional analysis based on state sovereignty, and argues for replacing it with “federalism all the way down” to the local level.64 Whatever merits this perspective might have in other areas, it is an awkward fit for the subject of gun rights. There is no area of contemporary American life in which state governments so clearly and consistently assert their traditional self-conception as possessors of what the U.S. Supreme Court calls “a substantial portion of the Nation’s primary sovereignty.”65 The ubiquity of statewide firearms preemption statutes66 is one expression of this conviction; states preempt municipal regulation on this subject more often than perhaps any other. So is the presence of individual right-to-arms guarantees in a growing supermajority of state constitutions.67 Perhaps the boldest expression is the recent flowering of statewide “Firearms Freedom Acts,” which seek to challenge broad understandings of federal regulatory power over guns and their components.68 Preemption supporters may seek to liken municipal gun restrictions to “rules governing traffic and speed limits [and] the sale and consumption of alcohol,”69 which often vary along municipal lines. But different, more plausible comparisons suggest that we ought to find anomalous the idea of broad local control over keeping and bearing arms for self-defense, as we might in similar areas of life-or-death choice—such as the prospect of municipal capital punishment, or municipal control of abortion.70
I’ve argued that firearm localism would interfere with the exercise of gun rights to a degree that would undermine the compromise value of decentralization. Nevertheless, it is worth noting that some aspects of Blocher’s argument might actually lead to more judicial enforcement of Second Amendment rights than we see today.
If one does not follow Second Amendment litigation closely, it might seem natural to assume, from Blocher’s call for special deference to urban gun control, that statewide and national gun laws are receiving genuinely demanding constitutional scrutiny by lower courts applying Heller. However, with some exceptions, that is not so. The record of Second Amendment cases in most lower federal courts since Heller is one of substantial deference nearly across the board.71 The deference extends not only to draconian municipal laws, such as New York City’s $340 fee for a three-year permit to engage in the very act held constitutionally protected by Heller (owning a handgun at home),72 but also to statewide laws prohibiting most citizens from ever lawfully carrying handguns outside the home,73 and even to nationwide laws categorically prohibiting young adults from acquiring a handgun at retail.74 So far, lower courts appear reluctant to question legislative judgments when applying this enumerated constitutional right,75 and reluctant to extend the highest levels of constitutional scrutiny to Second Amendment claims at all.
This record leaves little work for a doctrine of “additional” deference to urban laws to do. If anything, the most natural consequence of Blocher’s argument about the salience of the rural-urban divide would run in the opposite direction. As Blocher hints, it might cast doubt on the cogency of post-Heller opinions upholding restrictive statewide or federal laws—particularly on their compliance with narrow tailoring.76 But to say that regulators should be aware of local or regional differences does not always entail that regulation should be devolved to the regional or local level. I have argued that the characteristic benefits of decentralization are best realized by vesting authority for firearms regulation in the state governments. If one accepts the decentralizing project, one should pursue it in the form of a traditional federalism.
Michael P. O’Shea is a Professor of Law and Associate Director of the Center for the Study of State Constitutional Law and Government at Oklahoma City University. B.A. Harvard, 1995; M.A. University of Pittsburgh, 1998; J.D. Harvard, 2001. Professor O’Shea is a co-author of the first law school textbook on firearms law and the constitutional right to keep and bear arms, Nicholas J. Johnson, David B. Kopel, George A. Mocsary & Michael P. O’Shea, Firearms Law and the Second Amendment: Regulation, Rights, and Policy (2012). He thanks Shannon Roesler and Andy Spiropoulos for comments on an earlier version of this response.
Preferred citation: Michael P. O’Shea, Why Firearm Federalism Beats Firearm Localism, 123 Yale L.J. Online 359 (2014), http://yalelawjournal.org/forum/why-firearm-federalism-beats-firearm-localism.