State Preemption of Local Gun Regulations

62 Pages Posted: 8 Jul 2020 Last revised: 15 Nov 2021

See all articles by Rachel Simon

Rachel Simon

Harvard University, Harvard Law School

Date Written: March 15, 2020

Abstract

Forty-five states have adopted express preemption statutes curtailing or entirely prohibiting local gun regulation, and several jurisdictions now threaten localities with penalties for violating such restrictions. These measures have been remarkably effective in reducing the breadth and variety of gun laws nationwide, but their consequences have only just begun to attract attention. Public debates over guns tend to center on the Second Amendment while overlooking state-level obstacles to local lawmaking, and the scholarship on state-local preemption lacks an analysis devoted exclusively to the gun-policy space.

To fill these gaps, this Article provides a comprehensive account of the firearm preemption phenomenon. Part I argues for greater local autonomy with respect to gun rights and regulations, highlighting what is at stake when states preclude communities from responding to local problems and preferences. In Part II, the Article traces the rise of firearm preemption and offers a framework for classifying the relevant statutes. Part III examines the mechanisms through which these laws derail local gun policymaking, and Part IV evaluates strategies for restoring and expanding local authority over firearms.

Ultimately, the Article demonstrates that state preemption is the primary barrier to local gun regulation and a severe constraint on opportunities for addressing many firearm-related challenges. Absent a concerted effort to scale back firearm preemption provisions, local governments will remain incapable of realizing their potential as sites for effective gun lawmaking. These conclusions yield new insights for both the firearms-law literature specifically and the ongoing dialogue around state-local relations more broadly.

Keywords: preemption, firearms, guns, localism, local autonomy, gun regulation, gun reform, local government

Suggested Citation

Simon, Rachel, State Preemption of Local Gun Regulations (March 15, 2020). Cardozo Law Review, Vol. 43, 2022, Available at SSRN: https://ssrn.com/abstract=3623529 or http://dx.doi.org/10.2139/ssrn.3623529

Rachel Simon (Contact Author)

Harvard University, Harvard Law School ( email )

United States

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