The great American gun debate has long been conducted at the national level — as we will see, once again, at Saturday’s March for Our Lives event in Washington, DC — but in many ways, it is also deeply rooted in local experiences.
Indeed, the touchstones of the debate are a series of place names. Columbine. Sandy Hook. San Bernardino. Aurora. Orlando. Las Vegas. Each of the attacks that occurred in those towns and cities triggered waves of discussion about how regulation might reduce the tens of thousands of shootings that occur in the United States every year. But those waves crashed and receded, and federal law remains fundamentally unchanged.
The Parkland mass shooting has set off another wave. There is some reason to believe that it will end differently than the others — that there will be marginal steps toward gun regulations, perhaps including limitations on high capacity magazines, a ban on “bump stocks” (which allow semiautomatic weapons to fire more rapidly), and restrictions on sales to minors.
But hopes were high in the wake of Sandy Hook, too, and Congress basically did nothing. How can supporters of reasonable gun regulation avoid similar disappointment this time around?
One partial solution is to look for answers closer to home. If we are stalemated at the national level, might we pursue gun regulations tailored to local experiences, preferences, and needs? Thoughtful policy suggests, and our traditions and Constitution support, this kind of “firearm localism.” It could help us find a way out of the current policy impasse.
A basic goal of regulation is to maximize public safety while minimizing costs to individual liberty, and one way to do that is by tailoring rules to places or situations where they’re likely to do the most good. When it comes to guns, that often means drawing distinctions between urban and rural areas.
Gun violence is disproportionately concentrated in densely populated areas. Roughly 60 percent of American gun homicides occur in the nation’s 50 largest metro areas. In Connecticut, for example, 67 percent of gun homicides occur in just three cities, which together account for just 11 percent of the state’s population.
On the flip side, the benefits of gun use are disproportionately rural. People in rural areas are far more likely to grow up with guns, and to use them for hunting and recreation. They might also face longer police response times, and so feel an increased need for a firearm in the home as a matter of personal safety.
A deadly exception to the overall cost-benefits calculation is suicide. Self-killing, which accounts for most gun deaths, is a disproportionately rural phenomenon, and until recently has been largely ignored in public discussions about guns. That seems to be changing, at least to some degree. Even so, the types of responses and regulations that might help address gun suicides — including the push for “firearm choice” laws (which allow people to put themselves, voluntarily, on “do not sell-to” lists) — are very different than those relevant to the problem of homicides in urban areas.
Given these different experiences, it’s unsurprising that supporters of stricter gun regulation tend to be highly concentrated in cities and relatively rare in rural areas, and also that advocates and opponents of such regulation sound (and feel) as if they’re talking across deep cultural divides. Even in gun-friendly states like Texas, the differences can be stark, with urban poll respondents nearly twice as likely to say they favor stricter gun laws.
Pooling the preferences of urban and rural areas leads to less overall satisfaction than more local approaches. Pitting those preferences against each other isn’t always necessary, let alone productive. A more localized approach could satisfy the preferences of more people without necessarily increasing the total amount of regulation.
To slightly modify a thought experiment used by the Stanford law professor (and former federal judge) Michael McConnell: Consider two jurisdictions, urban place A and rural locale B. Each is deciding whether to pass a particular gun regulation, and each has 100 residents.
In the urban area A, 70 people support the regulation; in rural area B, 40 do.
If they are required to reach a decision collectively, the regulation will pass and 110 people will be satisfied. But if they can choose for themselves, A will regulate, B will not, and 130 people will be satisfied.
Our forebears understood this calculus. American gun laws have historically been tailored to local conditions. In the era of our nation’s founding, regulations in major cities like Boston and New York effectively made it impossible for people to keep loaded guns in their homes, even as those living outside the city limits could and did rely on guns for hunting and self-protection.
As the nation expanded westward, the urban-rural division went with it. Even the cow towns of the supposedly Wild West had gun laws far more strict than those found in any American jurisdiction today. In places like Dodge City, Kansas, and Tombstone, Arizona, people were required to check their guns at the city limits. (The famed shootout at the OK Corral was sparked in part by the Earp brothers’ attempt to disarm members of the Cowboys gang, who were violating Tombstone’s gun ordinance.)
All of this raises the question: If firearm localism makes sense as a policy matter, tracks political preferences, and is consistent with American history and tradition, why isn’t the debate more focused on local solutions?
How the Second Amendment affects the argument for varying laws by locale
Of course, there’s a constitutional constraint on local variation: the right to keep and bear arms guaranteed by the Second Amendment. That right, as interpreted in binding Supreme Court precedent, forbids sweeping gun regulations. In fact, the Court’s two major Second Amendment decisions, District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), struck down municipal handgun bans.
And yet the Second Amendment is not incompatible with firearm localism (as I have argued elsewhere, at greater length). For one thing, the vast majority of politically plausible gun regulations raise no serious Second Amendment questions. The kinds of state or local laws that might emerge from the current wave of the gun debate, such as age restrictions, limitations on high capacity magazines, even bans on “assault weapons” (however defined), are overwhelmingly likely to be deemed constitutional by the courts.
Even Justice Scalia’s landmark opinion in Heller, which held that the right to keep and bear arms includes certain private purposes like self-defense against crime — and not only collective defense of the sort that a state militia provides — did not rule out such restrictions. Justice Scalia wrote that “longstanding” gun laws were “presumptively” constitutional, referring to laws banning “dangerous and unusual weapons.”
Since Heller, more than 1,000 Second Amendment challenges have been filed, and more than 90 percent of the challenges have failed. Many of those challenges involved the kinds of longstanding gun laws that Scalia had in mind. But it’s also the case that no feature of American gun regulation is more longstanding than the stricter regulation of guns in cities.
There is also no reason to think cities are eager to push beyond what the Constitution is currently held to permit. Note that even when the Supreme Court allowed handgun bans, DC and Chicago were the only two major cities to adopt them.
In any event, cities cannot exempt themselves from the Second Amendment. Federal constitutional rights are national rights for a reason. But the precise contours of those rights vary from place to place. No one doubts that freedom of speech is a nationwide right, for example, but what counts as “obscenity,” and therefore lacks constitutional coverage, is defined in part by community standards.
The due process clauses protect property as a matter of federal constitutional law, but state law defines what counts as property in the first place. Gun rights might be subject to the same kind of at-the-margins tailoring.
That leaves the most serious legal obstacle to firearm localism: the widespread, and relatively recent, adoption by state legislatures of “preemption” laws that limit or outright forbid municipal gun control. Thanks in part to an NRA-supported push beginning in the 1980s, more than 42 states have enacted broad firearm preemption laws. These laws are a far more significant impediment to local regulation, and to gun regulation more generally, than the Second Amendment. Their effect has been to force cities to have the same generally permissive rules as rural areas do.
Broad preemption laws prevent carefully tailored gun policy, they limit community self-governance, they break from longstanding American tradition, and they make compromise even harder in a debate in which common ground already seems hard to find. They should be repealed or revised to permit the kinds of local solutions suggested by policy, politics, tradition, and the Constitution.
National crises lead many people to look to Washington for solutions. That’s not always the best course.
Thinking about firearms localism requires a shift in mindset. As with many other regulatory issues, some people instinctively look to the federal government for answers. Democrats, who are far more likely to support both gun regulation and federal action, may be particularly susceptible to this reflex. And, to be fair, there are some kinds of gun regulation, including background checks and manufacturing requirements, that depend on a degree of national uniformity.
But, practically speaking, many bread-and-butter regulations can be passed and enforced at the local level. Permit requirements for public carrying, bans on particular kinds of weaponry and equipment (high-capacity magazines or assault weapons, say), age restrictions, and so on can be jurisdiction-specific and enforced locally without the need for nationwide coordination.
Of course, regulatory choices in other jurisdictions might blunt the effectiveness of these local rules. New York’s comparatively stringent gun laws are partially undermined by the “Iron Pipeline” through which guns flow from gun-friendly states like Virginia and North Carolina.
But those kinds of spillover effects simply create a practical limitation on the effectiveness of local tailoring; they aren’t an argument against it. Moreover, some policies are not as susceptible to externalities. A ban on open carrying in New York City can be enforced on the spot regardless of what North Carolina chooses to do.
Gun rights supporters have often succeeded by thinking two steps ahead: Not just winning particular battles, but establishing favorable terrain on which to fight — and the passage of the preemption laws is a perfect example.
Advocates of reasonable gun regulation can do the same. And the strongest terrain, it turns out, may be close to home.
Joseph Blocher is a professor at Duke Law School, and the author of the Yale Law Journal article “Firearm Localism.”
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